District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol. He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.
The Justice Department itself concluded during the Clinton administration that “[n]either the text nor the history of the Constitution” is “dispositive” on this question but has rendered an internal opinion against indictments of a sitting president as a matter of “considerations of constitutional structure.” I have long disagreed with the view that there is a constitutional barrier to indicting a sitting president.
My problem with this criminal case is not the timing of an indictment but the basis for the indictment. As I wrote earlier, the governing legal standard for violent speech is found in Brandenburg v. Ohio. As a free speech advocate, I have long criticized that 1969 case and what I consider its dangerously vague standard. However, even Brandenburg would treat Trump’s speech as protected by the First Amendment. Under that case, the government can criminalize speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”
Such electoral-vote challenges have been made by Democrats in past elections under the Electoral Count Act, and Trump was pressing Republican lawmakers to join the effort on his behalf. He stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”
He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.