Former Prosecutor Jeffrey Scott Shapiro: “The president didn’t commit incitement or any other crime. I should know. As a Washington prosecutor I earned the nickname ‘protester prosecutor’ from the antiwar group CodePink.”
The latest premise Nancy Pelosi and the Democrats are pushing to impeach President Trump is just as flawed and just as insubstantial as the first one they peddled. They point to Trump’s January 6, 2021 speech and claim that his rhetoric “incited insurrection” among other equally hysterical claims.
The problem with this claim is the speech itself. It is just like every other Trump speech he’s ever given. Further, if it were some kind of dog-whistle-laden rhetorical masterpiece that only he and his supporters (and the leftist elite, of course) can understand, why did only a tiny percentage of those assembled enter the Capitol, with fewer still taking part in the property theft or destruction, disrespectful behavior, and/or other facets of this imaginary insurrection?
Because the speech is completely devoid of any call to violence, much less to the overthrow of the United States’ government via spontaneous violent insurrection, Pelosi and her Democrat hordes are vague in their accusations, can’t point to one paragraph, one sentence, or even one phrase that supports their allegation.
Watch the speech:
In the absence of actual evidence, Pelosi is working on the cynical political calculation that enough Republicans and enough of the American public will go along with the lie that what happened at the Capitol was Trump’s fault. Pelosi apparently feels quite confident in this calculation, but then, she was confident the first time, too.
Of course, Pelosi, Democrats, the media, and Big Tech all completely ignore the comments by Democrats like Maxine Waters and Ayanna Pressley, the crazed lefties busting in on the Kavanaugh hearings, or the fact that few, if anyone, on the right blamed Bernie Sanders when one of his supporters shot up a GOP softball game, nearly killing Steve Scalise.
The actions of Trump’s supporters who are found guilty of any crime related to the Capitol riots are no more Trump’s fault than it was Sarah Palin’s fault when a—as it later turned out, left-leaning—nutter shot Gabby Giffords and killed a judge in Tuscon.
Ultimately, Pelosi and Democrats are playing a dangerous game with our Constitution’s most basic rights and, arguably, with our nation’s very rule of law.
Once again, Jonathan Turley cuts through the political sausage making and straight to the heart of the matter.
With seeking his removal for incitement, Democrats would gut not only the impeachment standard but also free speech, all in a mad rush to remove Trump just days before his term ends.
Democrats are seeking to remove Trump on the basis of his remarks to supporters before the rioting at the Capitol. Like others, I condemned those remarks as he gave them, calling them reckless and wrong. I also opposed the challenges to electoral votes in Congress. But his address does not meet the definition for incitement under the criminal code. It would be viewed as protected speech by the Supreme Court.
. . . . Despite broad and justified condemnation of his words, Trump never actually called for violence or riots. But he urged his supporters to march on the Capitol to raise their opposition to the certification of electoral votes and to back the recent challenges made by a few members of Congress. Trump told the crowd “to peacefully and patriotically make your voices be heard.”
These kinds of legal challenges have been made by Democrats in the past under the Electoral Count Act, and so Trump was pressing Republicans in Congress to join the effort on his behalf. He ended his remarks by saying a protest at the Capitol was meant to provide Republicans “the kind of pride and boldness that they need to take back our country.” He told the crowd, “Let us walk down Pennsylvania Avenue.” Moreover, marches are common across the country to protest actions by the government.
Turley provides some legal background for criminal incitement and notes that the House seeks to impeach the president for speech covered by the First Amendment.
The legal standard for violent speech is found with Clarence Brandenburg versus Ohio. As a free speech advocate, I criticized that 1969 case and its dangerously vague standard. But even it would treat the remarks of Trump as protected under the First Amendment. With that case, the government is able to criminalize speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
There was no call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent, as the vast majority of the tens of thousands of protesters were not violent before the march, and most did not riot inside the Capitol.
. . . . So Congress is now seeking an impeachment for remarks covered by the First Amendment. It would create precedent for the impeachment of any president blamed for violent acts of others after using reckless language.
. . . . Democrats are now arguing something even more extreme as the basis for impeachment. Under their theory, any president could be removed for rhetoric that is seen to have the “natural tendency” to encourage others to act in a riotous fashion. Even a call for supporters to protest peacefully could not be a defense. Such a standard would allow for a type of vicarious impeachment that attributes conduct of third parties to any president for the purposes of removal.
Democrats are pushing this dangerously vague standard while objecting to their own remarks given new meaning from critics. Conservatives have pointed to Maxine Waters asking her supporters to confront Republicans in restaurants, while Ayanna Pressley insisted amidst the violent marches last year that “there needs to be unrest in the streets,” and Kamala Harris said “protesters should not let up” even as some of those marches turned violent. They can legitimately argue their rhetoric was not meant to be a call for violence, but this standard is filled with subjectivity.
. . . . In this new system, guilt is not doubted and innocence is not deliberated. This would do to the Constitution what the violent rioters did to the Capitol and leave it in tatters.
I’ve snipped a good bit out of Turley’s piece for space, but I urge you to read the whole thing.
Jeffrey Scott Shapiro of the Wall Street Journal also weighed in on Pelosi’s incitement lie in his article entitled, “No, Trump Isn’t Guilty of Incitement: Inflaming emotions isn’t a crime. The president didn’t mention violence, much less provoke it.”
The president didn’t commit incitement or any other crime. I should know. As a Washington prosecutor I earned the nickname “protester prosecutor” from the antiwar group CodePink. In one trial, I convicted 31 protesters who disrupted congressional traffic by obstructing the Capitol Crypt. In another, I convicted a CodePink activist who smeared her hands with fake blood, charged at then-Secretary of State Condoleezza Rice in a House hearing room, and incited the audience to seize the secretary of state physically. In other cases, I dropped charges when the facts fell short of the legal standard for incitement. One such defendant was the antiwar activist Cindy Sheehan.
Hostile journalists and lawmakers have suggested Mr. Trump incited the riot when he told a rally that Republicans need to “fight much harder.” Mr. Trump suggested the crowd walk to the Capitol: “We’re going to cheer on brave senators and congressmen and -women, and we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”
In the District of Columbia, it’s a crime to “intentionally or recklessly act in such a manner to cause another person to be in reasonable fear” and to “incite or provoke violence where there is a likelihood that such violence will ensue.” This language is based on Brandenburg v. Ohio (1969), in which the Supreme Court set the standard for speech that could be prosecuted without violating the First Amendment. The justices held that a Ku Klux Klan leader’s calls for violence against blacks and Jews were protected speech. The court found that Clarence Brandenburg’s comments were “mere advocacy” of violence, not “directed to inciting or producing imminent lawless action . . . likely to incite or produce such action.”
The president didn’t mention violence on Wednesday, much less provoke or incite it. He said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
While impeachment doesn’t require evidence of an actual crime, what Pelosi seeks to do here would set a dangerous precedent, dangerous for future presidents of any party, yes, but also, and far more importantly dangerous to our Constitutional right to free speech, a right that our elected officials, including the president, share as Americans.DONATE
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