Excited about “Incitement?”

Storming of the Capitol — January 6, 2021

There’s been a lot of discussion about whether Trump is actually legally guilty of incitement to riot for the January 6 insurrection. After all, he didn’t actually march down with the mob and lead them into the Capitol. Although I knew he was responsible for the terrible events of that day, I wasn’t sure if his actions met the legal definition of incitement. But then I read one of my ACLU Landmark Cases Knowledge cards. I bought a pack of them who knows when or where and found them recently in a box and put them where I was sure to read them, in the bathroom.

And yesterday, the U.S. Supreme Court case of “Brandenburg v. Ohio” came to the top. I quote from the card:

A television news program in Cincinnati aired footage from a Ku Klux Klan rally organized by KKK leader Clarence Brandenburg. Along with familiar Klan images of robes and hoods and burning crosses, the program featured excerpts from speeches warning that if the government “continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance (sic) taken.” Brandenburg was tried and convicted for incitement.

In a decision that struck down Ohio’s criminal syndicalism statute and overturned a 1927 Supreme Court ruling that upheld such laws, the justices unanimously reversed Brandenburg’s conviction. Citing the First and Fourteenth Amendments, the court held that government can restrict only “incitement to imminent lawless action,” not abstract advocacy of illegal force. The Brandenburg test remains the standard used for evaluating attempts to punish incitement.”

Trump summoned the mob to the place where Congress was gathering to count the Electoral College votes, at the time that our elected representatives were actually counting them. He incited them to attack the Capitol to prevent the count. He said he would lead the walk down there. While he did not in fact walk with the mob — undoubtedly because he was too lazy — he went home to watch the events on television… and did nothing for hours to stop the mob.

So, not only did Trump incite the mob to imminent violent action, his intention to do that very thing is made clear by his subsequent failure to act to stop the mob because he was having so much fun watching it on television!

I mean, it happens very rarely that a mob is summoned to violent insurrection by someone who has all the resources at his disposal to stop the mob’s attack — both by using the media to communicate with the mob and summoning law enforcement to stop the mob. We know those around Trump urged him for hours to call off the mob.

It seems to me that Trump’s actions, leading up to the mob storming the Capitol, flunk the Brandenburg test because the occasion was imminent. Therefore, he is criminally liable for incitement to riot. The federal crime of inciting a riot carries a possible penalty of up to five years in prison.

Rep. Swalwell has filed a lawsuit demanding that Trump, Trump Jr., Giuliani, and Rep. Mo Brooks be liable for damages to those who were injured in the riot.

However, no one has attempted to criminally charge Trump. While some analysts say a jury should decide whether he committed a crime, others say that Brandenburg is about First Amendment rights that would make it difficult to convict. But Brandenburg, according to my card which was published long before January 6, is about whether the occasion for riot was imminent, which it clearly was.

So why isn’t anyone trying Trump for incitement to riot? Doesn’t the fact that he sat there chortling over the violence he was watching on television mean anything? It really bugs me. Can someone with legal knowledge, maybe, explain to me why there’s no point in bringing him to trial? Is Trump not being indicted because everyone feels his hand-picked Supreme Court will eventually let him off the hook, so why bother?

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He summoned the mob to the place where Congress was gathering to count the Electoral College votes, at the time that our elected representatives were actually counting them. He incited them to attack the Capitol to prevent the count. He said he would lead the walk down there. While he did not in fact walk with the mob — undoubtedly because he was too lazy — he went home to watch the events on television…

AND DID NOTHING FOR SEVERAL HOURS

TO STOP THE MOB!

So not only did Trump incite the mob to IMMINENT violent action, his INTENTION to do that very thing is made clear by his subsequent failure to act to STOP the mob, because he was having so much fun watching it on television!

I mean, it happens very rarely that a mob is summoned to violent insurrection by someone who has ALL the resources at his disposal to stop the mob’s attack — both by using the media to communicate with the mob and summoning law enforcement to stop the mob. We know those around Trump urged him for hours to call off the mob.

It seems to me that Trump’s actions, leading up to the mob storming the Capitol, flunk the Brandenburg test because the occasion was IMMINENT. Therefore, he is criminally liable for incitement to riot. The federal crime of inciting a riot carries a possible penalty of up to five years in prison.

Rep. Swalwell has filed a lawsuit demanding that Trump, Trump Jr. Giuliani and Rep. Mo Brooks be liable for damages to those who were injured in the riot.

However, no one has attempted to criminally charge Trump. While some analysts say a jury SHOULD decide whether he committed a crime, others say that Brandenburg is about First Amendment rights that would make it difficult to convict. But Brandenburg, according to my card which was published long before January 6, is about whether the occasion for riot was IMMINENT, which it clearly WAS.

So why isn’t anyone trying Trump for incitement to riot? DOESN’T THE FACT THAT HE SAT THERE CHORTLING OVER THE VIOLENCE HE WAS WATCH ON TELEVISION MEAN ANYTHING? It really bugs me. Maybe some Bloggelini with legal knowledge can explain to me why there’s no point in bringing him to trial. Is Trump not being indicted because everyone feels his hand-picked Supreme Court will eventually let him off the hook, so why bother?

Terry Baum is an actress, director, teacher, filmmaker, political activist, and award-winning lesbian playwright. Her blog BAUMBLOG is a “Top 100 LGBTQ Blog.”

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