Defense lawyers for several people accused of breaking the law during the January 6 Capitol riot are telling courts their clients should not be found guilty or punished severely because they were acting after being inspired by President Donald Trump.
The left-wing Mother Jones magazine has highlighted twelve such cases — which will almost certainly be cited by House impeachment managers this week as they attempt to prove their case that Trump is guilty of “incitement” in the riot.
Many of the accused cite the fact that Trump invited protesters to come to Washington, DC, or to march to the Capitol.
Jacob Chasney, for example, told NBC News previously “that he drove to Washington, D.C. as a part of a group effort, with other ‘patriots’ from Arizona, at the request of the President that all ‘patriots’ come to D.C. on January 6, 2021.”
There do not seem to be any examples, however, of defendants claiming that Trump told them specifically to commit violence.
Mother Jones appears to have adopted the novel, expansive definition of “incitement” used by the House Democrats.
However, as former President Trump’s lawyers argued Monday in their impeachment memorandum (footnotes omitted):
In Brandenburg [v. Ohio], the Supreme Court erected an extremely high bar to proving incitement. That test requires proof that “(1) the speech explicitly or implicitly encouraged the use of violence or lawless action, (2) the speaker intends that his speech will result in the use of violence or lawless action, and (3) the imminent use of violence or lawless action is the likely result of his speech.” The allegations against Mr. Trump unquestionably fail as a matter of law because “[a]dvocacy for the use of force or lawless behavior, intent, and imminence, are all absent.” Thus, “[t]he doctrine of incitement has absolutely no application” to this case.
What is required, to forfeit constitutional protection, is incitement speech that “specifically advocate[s]” for listeners to take unlawful action.
Because not a single word of the speech actually advocates violence either implicitly or explicitly, the first Brandenburg factor—specific advocacy of violence— is totally absent.
Moreover, Trump’s lawyers also point out that then-President Trump specifically told the protesters to behave “peacefully.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). He is the author of the recent e-book, Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.