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Trump’s Rally Speech Was Not Illegal “Incitement”

Trump’s Rally Speech Was Not Illegal “Incitement”

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.


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“Pelosi apparently feels quite confident in this calculation, but then, she was confident the first time, too.”

She wasn’t confident in the process the first time. She just needed something to take the news cycle away from the DOJIG testimony going on in the Senate at the same time.

    txvet2 in reply to ctgarric. | January 11, 2021 at 12:37 pm

    Just as her current hysterical demands are meant to take attention away from the stolen election.

    dging in reply to ctgarric. | January 11, 2021 at 1:01 pm

    This impeachment resolution resolution is Kafkaesque. And I mean that in the literal sense. They charge Trump with willfully making statements that encouraged lawlessness. But they don’t state what statements he made that encouraged lawlessness. How do you defend yourself against such a charge? The same way Josef K. did?

    And the charge him with threatening the GA Governor. But they don’t say how? They don’t say what the threat was. How do you defend yourself from such a charge?

    Like I said, Kafkaesque. Where is the outrage from the legal community from this Kafkaesque persecution?

      Squires in reply to dging. | January 11, 2021 at 1:23 pm

      Armando Valladares refused to sign a card proclaiming loyalty to a communist revolution. For this offense he was charged, tried, and convicted as party to a terrorist bombing that never occurred.
      He spent 26 years of his life being a torture-test subject in Castro’s prisons as punishment for his “guilt”.

      That is how the deceptive mentality operates, and that is what we are now and have been for decades facing.

      mark311 in reply to dging. | January 11, 2021 at 1:26 pm

      Well his language has all been public. He has been warned a number of times that the rhetoric he uses may cause problems and that it undermines democracy. Here is a recent time line FYI

        Ironclaw in reply to mark311. | January 11, 2021 at 3:33 pm

        Yet you can’t point to anything that constitutes incitement.

        felixrigidus in reply to mark311. | January 11, 2021 at 4:20 pm

        By your logic, all Democrats should be charged with incitement to violence. Merely claiming that the President’s administration was not perfect implies that people should be discontented and thus invited violence.

        Somehow I doubt you and your ideological friends on the left really want to apply this rule to yourself and not only to those you want to silence.

          mark311 in reply to felixrigidus. | January 11, 2021 at 5:12 pm

          If they are shown to have incited violence sure. I’m not sure that is actually the case but happy to be proven wrong. I think the key facts here are that Trump has continuous taken an unprovable narrative for months and fed that line to his supporters. It’s really a case of what did you expect to happen.

          Well mistake one, I’m not exclusively on the left I have policy preferences that also include right wing ideas. Secondly I’m not idealogical not really I’m driven by evidence and if someone can show me good evidence that I’m wrong on something then I’ll change my mind. This isn’t about silencing anyone this is about responsibility, you can say what ever the hell you like that’s fine. BUT if what you say causes an attempt at an insurrection then their are consequences to that. If the protests hadn’t happened then no issue but the reality is that they did.

          Arminius in reply to felixrigidus. | January 11, 2021 at 11:35 pm

          Yes, mark, you are a leftist and you are an ideologue. Every drop of venom you spew demonstrates that. As far as undermining democracy, good. You won’t find the word mentioned once in the Constitution. You’ll find a different word.

          U.S. Constitution, Article 4 Section 4: “The United States shall guarantee to every State in this Union a REPUBLICAN Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

          Big “D” Democrats couldn’t have outed themselves as subversives for stating their intention to replace our constitutional form of government with a form of government the founders specifically rejected as perhaps the worst form of government* any more than if named themselves the Soviet party and advocated a Soviet form of government (“workers'” councils) to replace the constitutionally provided legislatures.

          *From the congressionally-mandated citizenship training manual the U.S. Army was required to conduct as part of recruit training before FDR went hell-bent for rule-by-experts. At which point he decided it was dangerous to train soldiers who a) took an oath to defend the Constitution against all enemies foreign and domestic (officers; enlisted members take an oath to obey their officers’ lawful orders) while simultaneously undermining that document (a tradition the modern Subversive, or as they call themselves, Democrat party has embraced enthusiastically). So he abolished the training.

          No. 2000-25 } WASHINGTON, November 30, 1928.
          Prepared under direction of the Chief of Staff
          This manual supersedes Manual of Citizenship Training
          The use of the publication “The Constitution of the United States,”
          by Harry Atwood**, is by permission and courtesy of the author.
          The source of other references is shown in the bibliography.
          PART I — GENERAL …

          1. National defense. — Under the national defense act as amended in 1920. the War Department, among its many other duties, is charged with the task of recruiting and training the young men of our Nation through enlistments in the Regular Army, voluntary enlistment in the Reserve Officers Training Corps of high schools, colleges, universities, and in the 30-day training period in citizens’ military training camps throughout the nine corps areas of the United States. The combined average yearly strength of these various units approximates some 260,000 young men between the ages of 16 and 25 years, the most critical period in the determination of their real value as citizens of our country.

          It is. therefore, essential that the training of these young men embody, with their instruction in military science, at least a basic course in the science of government and the privileges, duties, and responsibilities of the individual citizen, in order that they may be returned to civilian life better equipped as the defenders of the institutions of our Government in time of peace as well as in time of war…


          Comparative analysis ————————————————– 120

          The manual then goes on in the next section (121) to explain in detail how the Republican form of government is “Superior to all others.”

          “120. Comparative analysis. — The following comparative analysis shows the principal characteristics of the three forms of government:
          Authority is derived through heredity.
          People have no choice in the selection of their rulers and no voice in making of the laws.
          Results in arbitrariness, tyranny, and oppression.
          Attitude toward property is feudalistic.
          Attitude toward law is that the will of the ruler shall control, regardless of reason or consequences.
          Democracy: A government of the masses.
          Authority derived through mass meeting or any other form of “direct” expression.
          Results in mobocracy.
          Attitude toward property is communistic — negating property rights.
          Attitude toward law is that the will of the majority shall regulate, whether it be based upon deliberation or governed by passion, prejudice, and impulse, without restraint or regard to consequences.
          Results in demagogism, license, agitation, discontent, anarchy.

          Authority is derived through the election by the people of public officials best fitted to represent them.
          Attitude toward property is respect for laws and individual rights, and a sensible economic procedure.
          Attitude toward law is the administration of justice in accord with fixed principles and established evidence, with a strict regard to consequences.
          A greater number of citizens and extent of territory may be brought within its compass.
          Avoids the dangerous extreme of either tyranny or mobocracy.
          Results in statesmanship, liberty, reason, justice, contentment, and progress.
          Is the “standard form” of government throughout the world.
          A republic is a form of government under a constitution which provides for the election of (1) an executive and (2) a legislative body, who working together in a representative capacity, have all the power of appointment, all power of legislation, all power to raise revenue and appropriate expenditures, and are required to create (3) a judiciary to pass upon the justice and legality of their governmental acts and to recognize (4) certain inherent individual rights.

          Take away any one or more of those four elements and you are drifting into autocracy. Add one or more to those four elements and you are drifting into democracy. — Atwood.
          121. Superior to all others. — Autocracy declares the divine right of kings; its authority can not be questioned; its powers are arbitrarily or unjustly administered.
          Democracy is the “direct” rule of the people and has been repeatedly tried without success.
          Our Constitutional fathers, familiar with the strength and weakness of both autocracy and democracy, with fixed principles definitely in mind, defined a representative republican form of government. They “made a very marked distinction between a republic and a democracy * * * and said repeatedly and emphatically that they had founded a republic.”
          Madison, in the Federalist, emphasized the fact that this government was a republic and not a democracy, the Constitution makers having considered both an autocracy and a democracy as undesirable forms of government while “a republic * * * promises the cure for which we are seeking.”

          Only a leftist ideologue advocates for shredding the Constitution and replacing the government guaranteed by that document with an entirely different, unconstitutional system.

          ** Harry Fuller Atwood (B: 1870 D: 1930), LLB (Chicago School of Law, 1898; LLB, Illinois College of Law, 1898; Ph.D., University of Chicago, 1897) was a lawyer, a nationally recognized authority on the United States Constitution, and a prolific speaker and author of books and pamphlets on that subject in the early part of the 20th century. When he died in December 1930 he was eulogized as a constitutional authority in obituaries nationwide in papers such as the NYT. Beyond that, not much information remains readily available.

          mark311 in reply to felixrigidus. | January 12, 2021 at 5:15 am


          You’ve sent that to me previously and most of it was utterly irrelevant. As i said to you previously I use the word Democracy as a coverall term in a generalised way. I’m perfectly aware that the US is a republic which is founded on democratic principles.

          As or my own political beliefs you really don’t have a clue so judging me on your own misconceptions doesn’t mean anything. You seem to define people as us or them; that’s not the case their is a spectrum of political values/belief

          I get it now! You misuse the term “democracy” because you use it as a kind of shorthand and “coverall” term, yet you haughtily berate, lecture, and badger those who similarly use terms like “socialism” and “communism.” That dog won’t hunt.

        Milhouse in reply to mark311. | January 11, 2021 at 6:06 pm

        “He has been warned a number of times that the rhetoric he uses may cause problems and that it undermines democracy.”

        That is meaningless. He has every right to use language that “may cause problems”. It isn’t and can’t be against the law to do so. Nor can it be against the law to “undermine democracy”. The definition of incitement is narrow and precise: it’s speech that is both (1) subjectively intended and (2) objectively likely to (3) imminently cause its listeners to break the law. None of those elements are fulfilled by anything on your timeline.

        And you can’t possibly have missed all the Democrat leaders, including Kamala Harris, who openly encouraged the riots this summer. They came far closer to incitement than anything Trump said. And yet nobody suggested they be prosecuted.

        Even if you imagine there was no election fraud, how is claiming there was any different from claiming that policemen are gunning for black people? If telling people the election is being stolen is inciting violence, then what is telling black people the police are out to murder them all, that they’re all in danger from the police, completely without any evidence whatsoever (because it’s not true).

          mark311 in reply to Milhouse. | January 12, 2021 at 5:29 am

          Of course he can say exactly what he wants that’s fine. Like any individual can say that x is shit for whatever reason but Trump is president and his words have power t a large portion of the populace. IF Trump went to court for incitement id agree he would be innocent because the courts wouldnt be able to differentiate between him as president and any other person from a legal perspective. The impeachment process however is broader than that it allows his position which is extremely powerful to be held to account. His words have consequences and from where im standing i dont see it as unreasonable to hold him to account when there are real world effects from those words.

          Trump has peddled the election fraud lie for months, even predating the election. He has stoked the crowds time and time again.

          As for BLM riots thats faulty logic. Using another crime to justify a different crime doesnt work. Its nonsensical.

          With regard to black violence there is a heap of statistical and video evidence that refutes your position. Clearly there are complexities with violence in the black community but waving it away and pretending there isnt an issue isnt helping anyone.

        Milhouse in reply to mark311. | January 11, 2021 at 6:10 pm

        All Trump said was that a terrible thing was happening at the Capitol, and that the assembled crowd should march down there, just as hundreds of equally passionate crowds have done in the past, and try to stop it in the same way those other hundreds of crowds have done — by letting congress know how angry they are, and cheering on those members of congress who are on their side. This is the essence of democracy.

        There is nothing he said that can be interpreted any other way. Every politician in the world speaks of “fighting” for their cause, just as they all speak of “campaigning”. If you think “fighting” means violence, then what about “campaigning”? Literally that’s a violent word too, and yet every candidate for every office from president to dog-catcher routinely uses it, and has done for at least the last century.

        nonny nu in reply to mark311. | January 14, 2021 at 3:38 pm

        mark311, I’m responding to your statement: “ A number of Trump supporters have expressed confusion over his condemnation of the actions taken in the capital it’s clear to a number of Trump supporters the intent of his words were to disrupt the electoral college vote count.”

        The confusion is not over what Trump intended. I have not seen one account of any Trump supporter saying that they thought that Trump actually told him/her to storm the Capitol, but felt confused when later Trump condemned those who stormed the Capitol. Actually, the “confusion” is more a feeling that Trump should not condemn those who stormed the Capitol bc they did it for him, even though he did not ask them to. It’s the “did it for him” part that is sticking in their craw. They don’t agree that he should condemn actions done for him regardless of whether he asked for those actions to be done.

Since San Fan Nan, Maxi Pad waters, The squad, and VP heels up have all made much worse comments in 2020 about the right, I think this is a pass. Besides by their own rants, Qui Pro is already impeached.

I just got through leaving a mark in the comment section at my long-ago, former employer, the KC Star. This morning it published a demagogic diatribe that stated (and I quote), “On Wednesday, Trump told rioters to storm the Capitol.” A flatout, bald-faced LIE.

Then the diatribe miserably attempted to connect dots between Sen. Hawley, Pres. Trump, and the Capital Hill protest last Wednesday with ‘rightwing terrorist’ Timothy McVeigh, murderous anti-semite F. Glenn Miller, Sandy Hook massacre, and numerous ‘vast rightwing conspiracies’ over the years.

Conveniently omitted was 2020, and what WE ALL witnessed FOR MONTHS in burning cities all across this land – BILLIONS in property damage; MILLIONS of lives ruined, THOUSANDS of businesses destroyed, dozens MURDERED; the complicity and incitement of this violence from democrats and media – NONE of which have faced ANY consequences.

Yet, I’m supposed to be upset about a kerfuffle on Capital Hill last week that dissipated as quickly as it appeared?

Sooo much healing. Sooo much unifying. How pathetic. What a farce.


Unfortunately it is against the Law if the politicians and media say so and the courts don’t correct it. New rules for Conservatives. This is not an endorsement. It’s a condemnation.

nordic_prince | January 11, 2021 at 1:29 pm

Pelosi and the other swamp creatures are acting exactly how you’d expect cornered animals to act – desperately, irrationally, lashing out at others. They rage, because they know their time is short.

    henrybowman in reply to nordic_prince. | January 11, 2021 at 6:05 pm

    Promises, promises. I’m tired of being Q’ed and Krakened to death. My hope has been abused and my blood pressure has been threatened.

The fact that McConnell fell for the MSM fake news hysteria provoking stories speaks volumes about his dislike of Trump dealing with institutionalized corruption at the FBI/DOJ/CIA/IRS etc. His gullibility contrasts sharply with his failing memory of 3 months of protests and rioting four years ago, invasion of the Senate during deliberations of Kavanaugh and even harassment of Senators in their offices. Not once did McConnell call for Schumer’s expulsion although it was clear as day and openly acknowledged that he and Pelosi arranged these intrusions.

    nonny nu in reply to puhiawa. | January 14, 2021 at 3:39 pm

    McConnell didn’t “fall for” the fake news. He knows that the news is fake. He’s just using it to distance himself from Trump in the eyes of his new overlords. He thinks he can survive that way.

“It was strange, she thought, to obtain news by means of nothing but denials, as if existence had ceased, facts had vanished and only the frantic negatives uttered by officials and columnists gave any clue to the reality they were denying.” Atlas Shrugged, Ayn Rand, 1957

You and me —> The ends do not justify the means.

Political class —-> The means justify the ends.

Lies, obfuscation, half-truths, statements devoid of content – like Lucy with Charlie Brown’s football, why do we expect.
reality from either the politicians or media?

I assume the Antifa-typical weapons and gear used by the attackers materialized spontaneously through the power of Trump’s oratory?

Bucky Barkingham | January 12, 2021 at 7:57 am

Forget the legal niceties. The agenda here is to further The Big Lie. In that Miss Nancy and the other Leftists are aided and abetted by their media enablers and Useful Idiots on the Right.

She should simply impeach him for attempting to incite Pence to perform an impeachable offense during the vote counting.