Then-President Donald Trump addressed an enormous crowd in front of the White House on Jan. 6. “We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore,” he loudly declared to the thousands of people gathered.
He added: “After this, we’re going to walk down, and I’ll be there with you. … We’re going to walk down to the Capitol … because you’ll never take back our country with weakness. You have to show strength. … We’re going to walk down Pennsylvania Avenue … and we’re going to the Capitol.”
Donald J. Trump has already been impeached by the U.S. House of Representatives for “incitement of insurrection.” On Tuesday, his lawyers provided an “answer” to the Article of Impeachment delivered to the Senate, in which they “denied that President Trump incited the crowd to engage in destructive behavior.” The former president’s words, they assert, are instead “protected speech” pursuant to the First Amendment of the U.S. Constitution.
Trump’s speech was not protected
Like so much else the ex-president and his lawyers say, that is false. Trump’s incendiary remarks Jan. 6 were clearly incitement, even within the parameters of the term in First Amendment jurisprudence.
The ex-president’s short Tuesday filing implicates a question we will see more of in his full brief on Monday: Were Trump’s remarks mere “advocacy,” or were they instead “directed to inciting or producing imminent lawless action and … likely to incite or produce such action”? The former is protected under the First Amendment. The latter, under the landmark 1969 Supreme Court decision Brandenburg v. Ohio, is not.
As a threshold matter, and as the House points out in its trial brief also filed Tuesday, the Brandenburg test does not apply. That is a test designed for ordinary criminal prosecutions of private citizens — not government officials. The Supreme Court has ruled their speech is entitled to lesser protection when it comes to the performance of the public duty they owe us all.
Presidents are held to a “high crimes and misdemeanors” constitutional standard for wrongdoing, and the First Amendment does not protect speech that constitutes impeachable conduct. Every prior presidential impeachment, including Trump’s first one, was based in part upon words spoken by the president. The First Amendment did not come into play there, and neither is it relevant here.
Even if the Brandenburg test were applied, Trump would flunk.
First, Trump’s speech encouraged the use of violence or lawless action. Trump’s lawyers have absurdly argued that his Jan. 6 remarks did not have “anything to do with the action at the Capitol.” In fact, there can be no doubt that Trump was exhorting the crowd to engage in acts of lawlessness and violence. He ignited the supporters before him by repeating baseless claims, rejected by dozens of courts since Election Day, that he had “won” the election “in a landslide.” He insisted, “We won’t have a country” if we don’t “fight like hell,” adding that “we will not let them silence your voices. We’re not going to let it happen.”
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The crowd in return made clear they received his message as they chanted “Fight for Trump” throughout Trump’s remarks. Then, as the attack on the Capitol was already underway, and aides pleaded with Trump to call on the mob to stand down, he at first resisted any action to rein in the violence.
Instead, as he watched it unfold, aides described him as pleased, delighted and excited. If there were any doubt about the meaning of Trump’s remarks to the angry crowd gathered just a short march from the Capitol, his subsequent actions confirm that he meant to incite violence and lawlessness.
A history of courting the ‘alt-right’
Second, Trump plainly intended that his speech would result in the use of violence or lawless action. His lawyers suggest that Trump was merely advocating for good government in his speech, and that these remarks were “clearly about the need to fight for election security in general.”
Yet, as we have come to expect with Trump, his tweets suggested otherwise. He pushed conspiracies about fraud, proclaimed that the Jan. 6 rally “will be wild!” and exhorted his supporters to “be strong.”
He issued these directions after a long history of courting, condoning and recruiting extremists to act on his behalf. From telling the Proud Boys to “stand back and stand by,” to his enthusiastic support for the car caravans that tried to run Biden campaign buses off the road, to his regular encouragement of “Stop the Steal” rallies, including the one on Jan. 6, Trump hardly practiced the art of subtlety. The evidence of this years-long courtship of the violent “alt-right,” with a crescendo of specific calls to action culminating in the violent insurrection at the Capitol, is plain to see.
Finally, the use of violence or lawless action was imminent and the result of his speech. Trump addressed the crowd about noon on Jan. 6, with Congress scheduled to meet in joint session at 1 p.m. The attack on the U.S. Capitol began soon after 1:10 p.m. He told them they’d walk down Pennsylvania Avenue, to the Capitol, together; then they did walk down Pennsylvania Avenue to the Capitol (of course, abandoned by Trump).
Trump’s defense lawyers have tried to make this a complicated question of constitutional law, but it’s simple. They claim that the freedom of speech that is the “backbone of all American liberties” is imperiled. It is not. The Supreme Court’s test for discerning what is advocacy and what is incitement to violence is so stringent that it let Clarence Brandenburg, a Ku Klux Klan leader, off the hook. Although it is not required in an impeachment trial, even if we do apply the test, the results are clear: Trump incited insurrection.
Norman Eisen (@NormEisen) was President Barack Obama’s ethics czar and wrote “A Case for the American People: The United States v. Donald J. Trump,” based on his year as special impeachment counsel to House Judiciary Committee Democrats. Katherine Reisner (@katiereisner) was counselor to the secretary and deputy secretary at the Department of Homeland Security in the Obama administration. Both serve as outside counsel to the nonpartisan Voter Protection Program.
This article originally appeared on USA TODAY: Whatever legal or constitutional test you apply, Trump incited the violent Capitol attack