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 6^th 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. 6^th, 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. 6^th 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.