First Amendment: Trump’s incitement may not be punishable

Eugene Volokh in Reason, January 7, 2020, writes that under the Supreme Court’s Brandenburg v. Ohio that even advocating the use of force can’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Since President Donald Trump did not specifically call for violent invasion of the Capitol, it would be difficult for prosecutors to prove that was his intent. That is not to say, writes Volokh, that Trump was blameless in making reckless comments that led some supporters to invade the Capitol, resulting in the disruption of Congress, four deaths and numerous injuries. For the Volokh Conspiracy’s take on impeachment, click here.

Michigan law professor Len Niehoff, Detroit Free Press, January 8, 2020, argues that Trump was culpable under Brandenburg for directing the audience to act, and that the sum of his statements following the words of Trump, Jr., “We’re coming for you,” and and Rudy Giuliani’s “trial by combat,” amounted to an incitement to disrupt Congress in an attempt to subvert the election.