Below is my column in The Hill on the news that Donald Trump will not be charged with campaign finance violations linked to payments made to Stormy Daniels. The report (and the start of the Senate trial) raise another question as to why Trump has not been interviewed, let alone charged, with the crime of incitement. Various members and legal experts have claimed that the case for prosecution is clear on its face. The crime occurred in public over a month ago, but there is no indication of a move to prosecute. Why? It is presumably not because prosecutors feel it would be too easy.
Here is the column:
Donald Trump may be the most convicted man never charged in America. According to media reports, the Justice Department has decided not to charge Trump with campaign finance violations related to hush money paid to former stripper Stormy Daniels. What was touted by many experts as a slam-dunk criminal charge has now joined a long list of alleged crimes that once were nightly cable-news sensations.
The disconnect between legal analysis and legal reality matters little in today’s media. Many of the same experts now trumpet the charge of criminal incitement in the Jan. 6 Capitol riot. In their minds — unsurprisingly — it is another open-and-shut case. For four years, they have supplied a stream of allegations, all described as conclusive, to feed readers’ and viewers’ insatiable appetites. The campaign finance charge actually was one of the more credible claims, since former Trump lawyer Michael Cohen pleaded guilty to it. However, such crimes are notoriously difficult to litigate, as shown by the failed 2012 prosecution of former presidential candidate John Edwards.
Many of these alleged criminal acts were presented as reassuringly simple and straightforward. Former prosecutor and Washington Post columnist Randall D. Eliason insisted Trump committed bribery in the Ukraine scandal since “allegations of a wrongful quid pro quo are really just another way of saying that there was a bribe … it’s bribery if a quid pro quo is sought with corrupt intent, if the president is not pursuing legitimate U.S. policy but instead is wrongfully demanding actions by Ukraine that would benefit him personally.” It did not matter that the Supreme Court has roundly rejected such sweeping interpretations of bribery, extortion and related political corruption. Others claimed Trump committed “felony bribery” by fundraising for Republican senators when he was about to be impeached.
Former CNN legal analyst and former House impeachment counsel Norm Eisen claimed that, by not responding to Russian aggression, Trump was “colluding in plain sight” and the criminal case against him for obstruction of justice was “devastating.” That was in 2018.
Former Watergate prosecutor Nick Ackerman said Donald Trump Jr.’s emails about meeting with Russians at Trump Tower were “almost a smoking cannon,” adding that “there’s almost no question this is treason.” Professor Richard Painter claimed a clear case for treason. Harvard professor Laurence Tribe declared Trump’s dictation of a misleading statement about the Trump Tower meeting constituted witness tampering; Tribe previously found compelling evidence of obstruction of justice, criminal election violations, Logan Act violations, extortion and poss
Now, experts claim Trump’s Jan. 6 speech clearly was criminal incitement. Said CNN legal analyst Elie Honig: “As a prosecutor I’d gladly show a jury Trump’s own inflammatory statements and argue they cross the line to criminality.” Richard Ashby Wilson, associate law school dean at the University of Connecticut, said “Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the Electoral College vote results. He should be criminally indicted for inciting insurrection against our democracy.”
Many were quick to repeat their certainty of yet another criminal act. Tribe declared: “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government, preventing this peaceful transition of power and putting a violent mob into the Capitol while he cheered them on.” Bolstering such claims, District of Columbia Attorney General Karl Racine said he was investigating Trump for a possible incitement charge.
What’s strange is that there’s no word of an interview, let alone a charge, on a purportedly clear crime committed more than a month ago. One possible reason is that it would collapse in court. It is much easier to claim easy prosecutions than to prosecute such made-for-TV charges. I do not fault experts for speculating about such a case — but many are claiming, again, that prosecution would be relatively easy. That simply is not true.
The problem is free speech. Trump’s Jan. 6 speech would not satisfy the test in Brandenburg v. Ohio, where the Supreme Court said even “advocacy of the use of force or of law violation” is protected unless it is imminent. Trump did not call for the use of force but actually told people to protest “peacefully” and to “cheer on” their allies in Congress. He later — and too belatedly — repeated that after violence erupted, telling his supporters to respect and obey the Capitol Police.
Racine showed how disconnected these theories are from case law. He noted that Trump failed to “calm them down or at least emphasize the peaceful nature of what protests need to be.” Setting aside that Trump did tell them to protest peacefully, his failure to calm down a crowd is not criminal incitement by omission.
Trump does face ongoing liability — largely the same threats that existed before he became president, in the form of bank, tax and business investigations. But the litany of crimes breathlessly suggested over the last four years passed without charges. Nevertheless, experts have lined up to argue now that there are no free-speech or legal barriers to prosecuting Trump for incitement.
There is now a difference, however: There’s no longer an excuse that Trump cannot be indicted in office (which I do not believe is true), or that he would just pardon himself (which he didn’t do despite predictions he would). What was conveniently hypothetical can be an actual prosecution today. If criminal incitement is such a strong case, make it — charge him. Of course, such prosecutions could come at a cost. Unless there is evidence of direct intent, Trump is likely to prevail at trial or on appeal. He then could claim not just vindication on a federal charge but also on his second impeachment.
There is no crime of incitement for legal analysts who exaggerate or oversimplify criminal provisions; the public can be whipped into a frenzy with claims of easy prosecutions or slam-dunk charges. Many people are addicted to rage and these claims, even if illusory, feed that addiction. It is all entertainment until someone actually tries to bring a prosecution — and that is when reality sets in.
Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.
Brian Kalt, a law professor cited heavily in the new brief from Trump’s lawyers says “in several places, they misrepresent what I wrote quite badly.” They cited him as support for their claim that late impeachment is unconstitutional and thus the Senate must acquit. In reality, he concluded late impeachment and removal are constitutional. Here’s his thread –
https://twitter.com/ProfBrianKalt/status/1358822179220189184
Is it really your fancy that Kalt is the only authority they cited, or that they cited him for the reasons Kalt claims?
I know that he isn’t the only person they cited. He identifies what he’s addressing (e.g., p.21 n.57, p.30 n.79). Is it really your fancy that he’s mistaken in his criticism?
Anon: What did Liberal Law Prof Alan Dershowitz say about the DT Imprachment and the 1-06-2021 gatering? No basis for it. FBI investigated and made no overtures of any nature. FBI said what Anon about a plan of insurrection?
Here’s how you know Trump did not “incite an insurrection.” Had he done so, the insurrection would have been successful. There were a lot of very ticked off people in Washington DC who saw an election stolen with the collaboration of the 3 letter agencies and the court system, people who were just waiting for some form of action, a go-ahead from their leader. They didn’t get it. That’s why a few people taking selfies didn’t turn into a million people taking over the country. Because they got nothing from Trump. But facts don’t matter to Democrats. We get that. You don’t need facts when you control the media and all 3 branches of government.
That is certainly what it seems. I think that the overall effect is only a watering down of our respect for law and lawful practice. If you see “legal experts” continuously and frequently Calling Wolf all the time—how is anyone supposed to take anything they say, or is said at all in liberal media sources, SERIOUSLY???
The hunger shown by the Rabid Liberal Thrall for power and their power to incite is palpable. If you watch any CNN network for an hour you can almost taste it! Unfortunately, for me, it tastes like bile.
How silly to suggest that an insurrection isn’t an insurrection if it fails.
It is ABSOLUTELY LUDICROUS to suggest the unorganized and rag-tag group of independent weirdos who beached our Capitol Building were AT ALL actually connected to President Donald J. Trump. Every person who suggests that is GUILTY of Partisan Transference and likely Race-Baiting—when they take the Narrative to encompass all people into GROUPS OF PEOPLE. THOSE PEOPLE WERE INDEPENDENT and of their own minds. Many, many people DO NOT LIKE what happened in the 2020 Election. Many, many people were going to march to the Capitol regardless of what Trump said at the podium on Jan 6th.
We need liberals to STOP ACTING LIKE LITTLE BRATS! Including Pelosi and Schumer! Adam Schiff is lost I’m afraid. Our Congress is LOKKING LIKE A CIRCUS AND A JOKE!!!
“‘I Answered the Call of My President’: Rioters Say Trump Urged Them On”
https://www.nytimes.com/2021/01/17/nyregion/protesters-blaming-trump-pardon.html
“In this time-lapse animation, smartphones moved from Trump’s rally to the Capitol.”
https://twitter.com/nytopinion/status/1357991576795041794 (video in the tweet, more info in the linked article)
Here’s a good timeline for the insurrection –
justsecurity.org/74138/incitement-timeline-year-of-trumps-actions-leading-to-the-attack-on-the-capitol/
And analysis of what the crowd heard and was shown –
justsecurity.org/74335/fight-for-trump-video-evidence-of-incitement-at-the-capitol/
justsecurity.org/74504/movie-at-the-ellipse-a-study-in-fascist-propaganda/
You think it’s ludicrous. I don’t.
“‘I Answered the Call of My President’: Rioters Say Trump Urged Them On”
https://www.nytimes.com/2021/01/17/nyregion/protesters-blaming-trump-pardon.html
*************************************
Wow two crazies say Trump said “something about taking Pennsylvania Avenue” and Ought to Be Committed cites it as proof positive of incitement to riot. This wouldn’t pass muster anywhere to prove the point asserted but hey it looks salacious. To be fair, the crazies at the NYT believe it, too. You know they say the ancient Romans went mad from lead poisoning in the aqueduct system. Based on this we have enough for a warrant to check the New York water supply. Oh and that Committed finds it credible is like night following day. I’m betting she believes everything in her pantry is “New and Improved,” too.
Mespo, you’re a troll.
One of the ways you troll is by dishonestly pretending that someone said something they neither said nor implied. horseactivist said “It is ABSOLUTELY LUDICROUS to suggest the unorganized and rag-tag group of independent weirdos who beached our Capitol Building were AT ALL actually connected to President Donald J. Trump.” I provided evidence that this is false. I did not say or imply that the article was “proof positive of incitement to riot.”
Another way that you troll is with insults.
I feel sorry for you that you choose to troll.
The above comment is from me, CommitToHonestDiscussion.
“Rioters Say Trump Urged Them On”
The Yorkshire Ripper, Peter Sutcliffe, claimed that a voice incited him to murder prostitutes. The voice apparently “emanated from the gravestone of a long-dead Polish man called Zapolski. It was ‘a voice similar to a human voice, like an echo.'” The voice “told him that prostitutes were ‘the scum of the earth and had to be got rid of.'”
So, disinter Zapolski and try him for incitement to murder.
Fortunately for Zapolski, in the law, “incitement” hinges on the *speaker’s* intent, not on the criminal’s fevered imagination.
The rest of that “timeline” nonsense is a post hoc fallacy.
Marching to the Capitol wasn’t the problem. The crimes committed by a subset are problems –
https://www.justice.gov/usao-dc/capitol-breach-cases
You Trumpsters never seem to get the simple fact that the majority of the American people have NEVER liked Trump. They didn’t vote for him in 2016, he had an historic run of low approval ratings (never getting even 50%), he trashed the economy Obama and Biden turned around after Bush trashed it, he botched the pandemic, he constantly lied about everything, he was predicted to lose, and he DID lose. Democrats do NOT control the media–this is just a line fed to you by extreme right-wing media, which has always preached to the church of Trump that mainstream media cannot be trusted. BTW: no mainstream media tell viewers not to trust Fox, OANN, News Max, Breitbart or other pro-Trump media. What does that tell you? THE ELECTION WAS NOT STOLEN—MOST AMERICANS DID NOT VOTE FOR TRUMP EITHER IN 2016 OR 2020 BECAUSE HE’S INCOMPETENT AND NOT FIT TO SERVE. You say you “saw” an election stolen–based on what? Every single “fact” relied on by Giuliani and Trump has been disproven. 50 Secretaries of State certified the results including Republican ones, and even after Trump tried to get them to cancel votes for Biden and threatened them. Barr, Krebs and 60+ courts held there was no fraud. Why do you continue to insist there was?
At this point does it matter? Not like they have follow any particular rules when harassing citizens for no reason.
More made for TV charges not quite made…Trump Derangement Syndrome…the sabotage of our nation to eliminate one man. What may be done now to divest us from King Biden and Shadow government supporting Harris?
Why aren’t the Coup leaders and members DEAD already??? Anyone involved ion the Coup needs to be Publicly Executed for America to heal..IMO
No one should be executed by the government. It’s past time to do away with the death penalty.
Here is a simple question. Would the mob have attached the Capitol if trump had not held his rally that morning on January 6? How about all hi talk for months ahead of January 6 where he said if he looses it is because they stole the election from him? IMHO, the answer is an easy no. So if it would not have happened without his words, do not his words make him culpable?
BabyTrump:
Boy, do you have a lot to learn about proximate and but/for causation. Substitute “the bus driver” and “drove the protestors to the Capitol” for “Trump” and “gave the speech” and you’ll at least have so idea of your logical error.
The election was stolen. Not because Trump said so, but because of subversive changes made illegally in swing states. When you open your eyes and discover there will never again be a real election without safeguards and voter ID, you may feel powerlessness sufficient to consider what was at stake in 2020.
The election wasn’t stolen. Dozens of judges have ruled on this. You believe that the changes were illegal, but you’re wrong.
“The election wasn’t stolen. Dozens of judges have ruled on this. ”
They did not.
They did. See the link in my response to Cassidy to read their rulings.
They did not rule on the question at hand. You are wrong.
SM
They ruled on in it a number of cases.
Here’s an example of an Arizona case where Judge Humetawa ruled on the question at hand –
https://www.democracydocket.com/wp-content/uploads/sites/45/2020/12/Order-Granting-MTD.pdf
Have you read her ruling?
If not, maybe you should read it and others before pretending “They did not rule on the question at hand.”
Your contention was “The election wasn’t stolen. Dozens of judges have ruled on this. ”. That is your quote.
Your link doesn’t prove anything of the kind.
SM
She’s one of the judges who ruled on the merits against the people alleging in so many words that it was stolen in Arizona. If you think that’s not “anything of the kind,” maybe you have unrealistic expectations about what the election lawsuits involve. If you’re only going to accept a case using the exact words “the election was stolen,” your view is too limited.
They did not rule on the question at hand.
SM
Cites, please!
https://www.democracydocket.com/case_type/post-election/
Just click each state, then you can see all of the post-election cases in that state and you can click on the judges’ rulings to read them.
“Dozens of judges have ruled on this.”
______________________________
What a ——- joke!
Roberts decided that Obamacare was constitutional.
Read the Constitution. You’ll find no basis for the ACA.
Try Article 1, Section 8.
Read what Congress has the power to tax for and what it an regulate.
How about the Constitution wherein it is required that a candidate be a “natural born citizen.”
Neither Obama nor Harris will ever be a “natural born citizen” and neither will ever be eligible for the presidency.
What a ——- joke!
Just like Joke Buyden and the ho who slept her way to the glass ceiling.
What a ——- joke!
That is silly. No judges have ruled on that question, and a “cabal” just went public in Time magazine with their claim that they did in fact steal the election.
Judges have ruled on the cases in front of them brought by Trump and his allies. I don’t think any of their lawyers said “The election was stolen” in those words. But dozens of judges ruled on the claims in the lawsuits. Some cases were dismissed solely for lack of standing, but in other cases, the judges ruled on the merits. If you didn’t know that, then you probably haven’t read their rulings. The Democracy Docket website has copies of the rulings. I just gave an example to someone else of a ruling that addressed the merits in Bowyer v. Ducey, one of the AZ cases. Have you read it?
I hope they impeach him so we can go after Obama and Clinton.
Please propose Articles of Impeachment for Obama and Clinton, so we can see what you want them to be gone after for.
As you know there are none, they just make it up and move on.
I would allege that Obama lead a coup against DT. As for Billy Clinton, I would allege if the data was released for Clinton’s trips with Jeff Epstine, it would be very damaging. Amy Robach (sp) said she had the report. Said ABC spiked/killed the report. Said, we had everything.
According to you, what did Obama do to lead a coup, and what did Clinton do? Articles of impeachment have to specify the actions.
Why do you require Articles of Impeachment? You already know the crimes they committed.
I was responding to Judith, who said that she hoped they’d be impeached. Learn to follow the conversation.
No, I don’t know what crime Obama committed. Clinton committed perjury and was impeached for it already, but the Senate decided it wasn’t worth removing him for.
You said: “Please propose Articles of Impeachment for Obama and Clinton”
I’ll repeat, Why do you require Articles of Impeachment?
SM
I asked for them because I was responding to what Judith said. I’ll repeat, Learn to follow the conversation.
You asked for them. Stop trying to weasel out of what you said. The quote is clear no matter what reason you have for the quote.
Let me help you to learn why your excuse holds no water.
You said: “Please propose Articles of Impeachment for Obama and Clinton”
I’ll repeat, Why do you require Articles of Impeachment?
SM
Yes, I asked Judith for them because she said they should be impeached. If they’re to be impeached, there have to be articles of impeachment. If you don’t understand why, so be it.
If you think that far flung rival leadership of nations on the other side of the world are the “True enemies’ then you are eating up Pentagon propaganda
The “true enemies’ is the group that has bought owned and leased out for hire the entire political, academic, and bureaucratic establishment of America:
the billionaires
They are your “true enemy” not one by one, not this one or that one, but the group as such
I’m done listening to “communists” this and that name calling. The true enemy is anything but communists. The true enemies are ensconced in NYC and Silicon Valley and are completely apolitical except to line their own pocketses
Sal Sar
Judith Black, he’s already been impeached.
Every government official or contractor – with governing authority – voluntarily agrees to protect the constitutional rights of all persons physically located within their jurisdiction. The constitutional Oath of Office includes “domestic enemies” to the U.S. Constitution and applies to local, state and federal officials and contractors.
For example: during the Jim Crow era, if a local sheriff chose not to be loyal to his Oath of Office, to protect African-Americans in his jurisdiction – it was perfectly constitutional for the state or federal government to “check & balance” that disloyal local official. When the Bush FBI was violating the constitutional rights of citizens, illegally searching local libraries’ search records, it was perfectly legal for local librarians to “check & balance” disloyal Bush-era FBI agents.
Most of the people that staff the US Department of Justice are great public servants but the system (or DOJ bureaucracy) is deeply flawed and has for many decades practiced constitutionally-subversive practices. The DOJ largely doesn’t enforce Cointelpro style blacklisting tactics. The DOJ doesn’t provide constitutional “judicial review” of state operated “Fusion Centers” and federal “Preemption & Prevention Grants”. These programs likely violate more constitutional rights and harm more innocent Americans than all conventional crime combined. The DOJ has effectively used excessive secrecy to prevent checks & balances by the co-equal Judicial Branch courts. In 2021, not even a federal judge can file a simple Freedom of Information request for non-identifying records on even bottom-line statistics.
One reform to make the DOJ more independent and loyal to it’s Oath of Office, would be to allow pro se plaintiffs to file “Writs of Mandamus” in federal court to: have a judge “Convene a Grand Jury to Convene a Special Prosecutor to initiate prosecutions independent of DOJ”. It would seem constitutional and the Grand Jury provides a check & balance against frivolous lawsuits. Basically, since the DOJ is overly political and not independent, the DOJ wouldn’t be the sole gate-keeper on federal prosecutions. For example: there are likely thousands of Cointelpro style blacklisting victims since 9/11 and the DOJ simply chooses not to help these crime victims in 20 years. None of these innocent Americans have even received an official apology from DOJ. The Executive Branch DOJ has also subverted the jurisdiction of the co-equal Judicial Branch to provide “judicial review” (“Marbury v. Madison”).
In the 21st Century, America has the worst record of imprisonment (per capita) than any other nation on Earth, this statistic doesn’t include the likely thousands of Cointelpro blacklisting victims. The system simply isn’t working with selective enforcement by a political agency untethered to it’s constitutional Oath of Office.