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. S.Meyer: “Jeff, Turley discusses points of law that might be involved in political disputes but they are points of law not politics. I don’t see him being disingenuous at all.“

    Meyer,

    It is not a question of politics. It is a question of economics. Turley has made a financial decision. I dare say he earns more money as a Fox employee than as a law professor. I do not begrudge him for making a living though working for Fox is nearly as contemptible as working for Infowars.

    When he takes a large salary from Fox, it stands to reason that he will have an allegiance to his employer. And his choice of commenting on controversies and- more importantly- his decision to avoid addressing certain others, reflect his loyalty to his bosses at Fox. It is not in his financial interest to antagonize them! He has said that he is authoring a book. He needs a platform like Fox in order to shill it whenever he is called upon to voice his opinion on a program.

    I can’t recall the last time Turley has himself criticized any Fox personality or Fox in general. That demonstrates his bias in favor of Fox by leveling his criticism exclusively at its media competitors. It’s nothing political; it’s business….

    1. Jeff, you watch Fox regularly. I don’t, so if Turley is on the network with any frequency I don’t doubt he receives some sort of compensation. However, that is NOT a certainty. That is a guess by you and me and should be recognized as a guess. It is not a crime.

      When Turley represents a client, his job is to promote innocence, not guilt. When he is in the ‘courtroom’ he will portray the law in a way most favorable to his client.

      On TV, if he is asked to provide the defense of a position, he will undoubtably defend the position, not prosecute it. He is not there to opine on other subjects or people so what you see as a lack of integrity is one who restricts his comments to the discussion at hand. That is totally appropriate.

      If on TV he is asked for his opinion of a subject, I believe he will give it, though it will be colored by his own politics and bias that can be recognized by the audience. If the subject is covering only one side of an issue, his opinion could appear one-sided as that is the specific issue under discussion. If he is asked for his legal opinion on an issue I believe he will provide what he legally believes is true. I have seen him do just that to the dismay of those asking the question.

      Fox seems to be open to opinions that vary ( they lean right but have hosts that reside on the entire central spectrum, IMO excluding the extremes)

      What you seem to be saying is that paid attorneys, when asked for their personal opinion, will provide the opinion the network wishes them to provide. That is true for many of the attorney’s we hear on the MSM and many attorneys hired as expert witnesses. They are providing the popular opinion of many so they wish to satisfy their audience and get paid for doing so.

      There are attorney’s where their reputation adds a higher price tag to their opinions that is not only represented by dollars. Though they can color things a bit I don’t think they outright lie like we see so frequently.

      I followed Alan Dershowitz for a long time despite our 180 degree difference politically. Throughout his career he has made decisions regarding his reputation that have angered many people that would otherwise offer him big bucks and and he continues doing that today. It is my feeling that Turley who also resides on the other side of the political spectrum from me is made of the same cloth, though I do not know him as well.

      Maybe difference of opinions regarding integrity arises from how people manage their own personal lives. I agree with you, most will sell out to the highest bidder and that is only logical so I don’t judge these people. I am known for not doing so in my private life so maybe my beliefs in personal integrity carry over to the few people I believe have tremendous integrity. That could be my fault.

      Do we really differ in opinion on this subject? Yes and no. I believe to some people integrity means more than money. I might be wrong in any one case but I wouldn’t say a good man lacks integrity unless I had solid proof. That is where we differ. You have seem to have concluded that Turley’s integrity is easily sold to the highest bidder. I don’t and I base that on his consistency. When defaming another one has to provide reasonable proof. That is not necessarily a legal requirement (on this blog) but it certainly is a moral one.

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