Exactly how will Mrs. Pelosi argue the legal merits of impeaching President Trump? As it was last time, she might have trouble defining exactly how Donald Trump broke the law. As James Freeman happily notes, Mr. Trump has First Amendment rights, just like I do and you do. And the way Trump chose to exercise them, however, is perhaps a big reason so many people voted for him in November.
Read why UCLA law professor Eugene Volokh, when asked if Trump met the legal standard of incitement, thinks not:
A friend asked me whether Trump’s speech yesterday could be punished as criminal incitement of the appalling Capitol riot.
I doubt it, at least as I read what Trump was saying. Under Brandenburg v. Ohio, even “advocacy of the use of force or of law violation” can’t be punished unless it “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Saying things that foreseeably move some audience members to act illegally isn’t enough. Speaking recklessly isn’t enough. The Court was well aware that speech supporting many movements—left, right, or otherwise—that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.
And that test of course applies equally to all speakers, politicians or otherwise. If an ordinary citizen said what Trump had said, it seems to me very hard to see how prosecutors can show beyond a reasonable doubt that he was intentionally promoting a riot (see, e.g., Hess v. Indiana), or even intentionally promoting trespassing.