President Trump most certainly did not incited either a riot or violent insurrection during his speech on the National Mall on Wednesday, and any effort to impeach him over it would be a gross abuse of Congressional power by essentially criminalizing protected political speech.
Yes, everything the President said on Wednesday--every last word--was protected political speech.
For speech to rise to the level of incitement and thus be criminal, it must pass a two-pronged test established in Brandenburg v. Ohio, a 1969 U.S. Supreme Court case that determined that a Ku Klux Klan leader could not be punished for a speech he gave to members under the state's criminal syndicalism law.
Speech, the Court held, can only be criminalized as incitement if it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
At no point during his hourlong speech did President Trump direct or incited lawless action. In fact, he urged the exact opposite.
"We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated," he said. "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."
This, of course, is Constitutionally protected behavior as both political speech, peaceable assembly, and even a petition of the government for the redress of grievances.
"So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give… The Democrats are hopeless. They’re never voting for anything, not even one vote. But we’re going to try and give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country," the President concluded. "So let’s walk down Pennsylvania Avenue."
This speech was directed toward producing imminent lawful and Constitutionally protected protest, not lawless action. Moreover, it could not be seriously argued that it would be likely to incite or produce lawless action. It was likely to produce...a walk down Pennsylvania Avenue for a protest at the Capitol.
Since this is not a lawless activity and is in fact protected by the First Amendment, criminalizing it through impeachment would set a wholly indefensible and downright dangerous precedent.
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