Trump’s Surprise Witness: Rep. Waters Becomes A Possible Witness Against Her Own Lawsuit

With rioting continuing in Brooklyn Center, Minn. and around the country, Rep. Maxine Waters, D-CA, went to Minnesota and told the protesters that they “gotta stay on the street” and “get more confrontational.”  The statement is ironic since Waters is one of the House members currently suing former President Donald Trump and others for inciting violence on January 6th with his words on the Mall.  Waters insists that Trump telling his supporters to go to the Capitol to make their voice heard and “fight” for their votes was actual criminal incitement. Conversely, Waters was speaking after multiple nights of rioting and looting and telling protesters to stay on the streets and get even more confrontational. There was violence after the remarks, including a shooting incident where two National Guard members were injured. Waters has now guaranteed that she could be called as a witness by Trump in his own defense against her own lawsuit.

Waters’ most recent words could well be cited in the ongoing litigation over the January 6th riot on Capitol Hill. As I have previously discussed, the lawsuit by House members and the NAACP may prove a colossal mistake. It is one of a number of lawsuits, including a lawsuit filed by Rep. Eric. Swalwell, D-Cal, that could ultimately vindicate Trump shortly before the next election. While it is possible that members could find a trial judge to rule in their favor, these lawsuits should fail on appeal, if they get that far. Moreover, they would fail under a lower standard of proof than the “beyond a reasonable doubt” standard in criminal law. Such a result would eviscerate the claim that Trump was guilty of criminal incitement in his speech.

After the riot, various legal experts appeared on news channels to proclaim that this was a strong if not conclusive case for criminal incitement. Trump was clearly guilty of criminal incitement. CNN legal analyst Elie Honig declared “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.” District of Columbia Attorney General Karl Racine then thrilled many by declaring that he was investigating Trump for a possible incitement charge.

As I have previously written, these statements ignored both the elements of that crime and controlling case law. Notably, while these and other experts insisted that the crime of incitement was obvious and public on Jan. 6th, there has been no charge brought against Trump despite over four months. Why?

The reason is that an actual criminal case would lead to a rejection of not just the charge but the basis for the second Trump impeachment. Trump’s Jan. 6 speech would not satisfy the test in Brandenburg v. Ohio, where the Supreme Court stressed that 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. After violence erupted, Trump later told his supporters to respect and obey the Capitol Police.

Now Waters, Swalwell, and others are rushing in where wiser Democrats fear to tread. These civil lawsuits actually raise claims like the infliction of emotional distress that were directly and unequivocally rejected by the Supreme Court. In 2011, the court ruled 8-1 in favor of Westboro Baptist Church, an infamous group of zealots who engaged in homophobic protests at the funerals of slain American troops. In rejecting a suit against the church on constitutional grounds, Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and — as it did here — inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.”

Yet, Waters is not more deterred by the actual case law in this area than the legal experts on CNN and MSNBC. Indeed, Waters has gone further and insisted that Trump should not only be charged with criminal incitement but actual “premeditated murder.” She stated, “For the President of the United States to sit and watch the invasion and the insurrection and not say a word because he knew he had absolutely initiated it – and as some of them said, ‘he invited us to come.”

That bring us back to Brooklyn Center this weekend. Violence and looting have been unfolding around the country, including the near the area where Waters was speaking. Yet, she called on people to stay in the streets and get more “confrontational.”  She added that there would be no acceptance of court decisions to the contrary in the Chauvin case: “We’re looking for a guilty verdict. If we don’t, we cannot go away.”  Protesters have not only been camped around the courthouse but the home of a witness in the Chauvin case was targeted. (It turned out to be his former home). Critics could charge that Waters’ statement and these protests are meant to intimidate witnesses or influence the trial — just as critics charged that Trump was attempting to intimidate or influence Congress.

After Waters remarks, protesters confronted reporters in a tense scene. Also protesters descended upon the home of the prosecutor responsible for the second degree manslaughter charge against the officer who killed Daunte Wright. Also the Minnesota National Guard was fired upon, injuring at least two Guardsman.  That is not to say that Water incited such actions but that the same claimed nexus could be raised in making such an allegation as was done in the Trump impeachment.

In my view, those words are political speech and should not be subject to criminal sanctions. However, I felt the same way about Trump’s speech (which I condemned as he was giving it on Jan. 6th as reckless). I also rejected prior claims against Waters like when she encouraged protesters to confront Trump officials in restaurants and “push back on them and you tell them they’re not welcome anymore, anywhere.” It is all protected speech.

Yet, that standard cannot be selectively applied to some but not all riots or protests. Waters was encouraging protesters to continue to fight for what they believe in. Her over-heated rhetoric could easily be seen by some as an invitation or endorsement for rioting.  However, criminalizing such speech would shred the guarantees of free speech in our country.

Carl Jung once said that “Everything that irritates us about others can lead us to an understanding of ourselves”. That certainly seems to be the case with Waters and Trump. It is also why Waters could prove the only witness that Trump needs to call to defeat her own lawsuit.

213 thoughts on “Trump’s Surprise Witness: Rep. Waters Becomes A Possible Witness Against Her Own Lawsuit”

  1. Turley apparently has amnesia about the politicians who would make strong witnesses in any lawsuit against Trump & others for inciting the January 6th mob riot.

    Mitch McConnell: “The mob was fed lies. They were provoked by the president and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like.”

    Nikki Haley: “We need to acknowledge (Trump) let us down. He went down a path he shouldn’t have, and we shouldn’t have followed him, and we shouldn’t have listened to him. And we can’t let that ever happen again.”

    Liz Cheney: “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. “

    Elaine Cho: “Yesterday, our country experienced a traumatic & entirely avoidable event as supporters of the president stormed the Capitol building following a rally he addressed.”

    And now here’s a conservative law professor who is convinced Maxine Waters’ over-heated rhetoric completely negates the public statements by McConnell, Haley, Cheney, Cho & other Republican officials who drew a direct line between Trump’s rally speech & the Capitol riot. 10 Trump advisors resigned in protest after the January 6th riot along with 5 National Security Council officials.

    All of these Republicans could make good surprise witnesses in any lawsuits blamingTrump for inciting the Capitol mob violence.

    1. Why would they make “good surprise witnesses?” Because they’re Republican? Oh I forgot that only Republicans that agree with leftists are useful.

    2. Criticism of Trump does not mean that Trump did anything illegal. State any criminal infraction by Trump that any of those people have evidence for. If you can’t then your comments are worthless as far as innocence and guilt.

      1. S. Meyer, Trump’s own supporters, the rioters themselves, have admitted they understood what Trump meant in his speech. He wanted them to disrupt the proceedings. That’s incitement. It wasn’t just Trump, it involved other speakers at the rally.

        1. Svelaz, the ignorance you portray is too much to bare. Provide the quotes of Trump you appear to dislike. Do so in context. Trump said nothing wrong.


    3. Legal voter,

      Thanks for the litany of damning quotes. Turley never fails to point out that he criticized Trump’s rhetoric as “reckless” while he gave the speech as if he yields to no one in his disapproval of Trump’s conduct. But that comment is the sum total of his criticism! He has not passed judgment of Trump’s several weeks of election lies nor has he ever condemned Trump’s overall conduct as *morally* reprehensible. Turley has simply covered his keister with the lone “reckless” charge but has been as weak as water ever since. Shameful.

  2. Here’s the problem with Turley. He’s very well known for being nit picky about details and exact legal definitions.

    Maxine waters, stating, “ be confrontational” is not inciting violence. To confront someone or be confrontational is not violence or an act of violence at all. The very definition of “confrontational” is Someone who’s confrontational isn’t shy about arguing forcefully — in fact, it’s the way they often interact with other people. … When one person confronts another, they argue face-to-face — this interaction is confrontational.

    Heck, this blog is full of confrontational arguments. According to Turley’s own myopic interpretation everyone here is inciting violence.

    But as Turley himself pointed out that such speech IS protected speech. Trump’s speech is part of a concerted effort to incite his followers. Turley ignores the fact that Trump deliberately planned that rally on that date to incite his followers to do what they did on Jan 6.

    His own followers openly admit they believed Trump wanted them to storm congress and disrupt the proceedings. Trump took a long time to finally call for “calm” in the lamest of ways. If was so feeble and hollow that the effort was not really what he wanted.

    Maxine Waters remarks were not an incitement of violence. To be confrontational is not a violent action it’s a forceful stance without violence. It’s a defiant stance. All well protected by the 1st amendment. Funny thing is republicans are constantly promoting confrontational arguments and positions. Even while exercising open carry.

    1. Svelaz,

      Turley works for Fox News which enabled Trump to spread the Big Lie. Is it any wonder Turley pretends not to notice his network’s culpability? He is defending his boss by deflecting attention away from the obvious fact that Trump and Fox conspired to broadcast the “Stop the Steal” narrative. That lie set the stage for storming the Capitol. Trump’s speech was simply pouring gasoline on the fire.

      1. Jeff, Turley also writes for the Hill. He used to comment on the stations but they don’t like diversity of opinion especially when it comes from someone from the left. They also don’t like to deal with people that stand up for themselves.

        I think you have talked about diversity and balanced news at one time or another. You sound like a hypocrite. We haven’t seen the MSM deal with the claims of a lawless election have we?

    2. Svelaz, Do you apply the exact same standard to Trump and the folks at the Capitol Building on January 6th?

      The vast majority of them were merely confronting the Democrat Party for its conduct leading up to, during, and after the 2020 Election.

      Trump clearly stated his desire for the Protestors to politely and respectfully show their support for the Republicans in Congress who were challenging the Electoral College Vote.

      An honest Man attitude would seem to require you do apply the same standard to those folks as you do to big mouth Democrats like Max Waters.

  3. “ advocacy of the use of force or of law violation” is protected unless it is imminent. ”

    Strangely this also seems to apply to Maxine water’s rhetoric. Trump encouraged confrontation using other words and implied them through suggestions. Turley is over analyzing this in hopes that it will actually happen. It is true that she can be called as a witness, but so does Trump. In the end BOTH could be found guilty of incitement. Turley didn’t mention that.

  4. “Yet, that standard cannot be selectively applied to some but not all riots or protests.”

    Of course it can! The progressives can and have changed standards any time they please!

    One standard? That’s so . . . 1990 . . .

  5. I’d love to see what Waters would do to any line of questioning should she be called in a trump trial.

    1. Me too. For that matter, I’d love to see whether Trump would testify in a Trump trial or if he’d instead invoke his 5th Amendment rights.

      1. Anonymous the Stupid, the problem you have is you don’t recognize that Trump didn’t call for violence. Water’s did. You could always prove me wrong by quoting Trump in context, but you won’t. Do you know why? Because you are Anonymous the Stupid.

  6. pro tip:
    if you currently live anywhere in the minneapolis st paul area…
    and your home and neighborhood defense plan isnt a standard capacity magazine fed semiautomatic centerfire rifle caliber based one…
    *youre doing it wrong*

    1. A DP 12 also fits the situation nicely. I spent my stimulus handout in just that manner along with the centerfire rifle. We are in scary times that I plan on surviving with the least amount of hardship. I happen to live between Seattle and Portland and the world is crazy here as well.

  7. Immediate mistrial for Chauvin.

    Maxine could hardly have found a better way to scare hell out of jurors, judge, city and state.

    No chance of a lawful verdict now.

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