Trump May Be Shielded From Riot Charges by Klan Speech Case

(Bloomberg) -- A 1969 Supreme Court ruling that tossed the conviction of a Ku Klux Klan leader may also shield President Donald Trump from prosecution for inciting last week’s Capitol riot, leaving few alternatives to hold him accountable if impeachment efforts fail.

At the rally preceding the riot, Trump gave an inflammatory speech, urging the crowd to go to the Capitol and demand legislators gathered to formally confirm President-elect Joe Biden’s election victory address his baseless claims of voter fraud. Trump asked his supporters to “show strength” and “fight much harder.” Rudy Giuliani, Donald Trump Jr. and U.S. Representative Mo Brooks also spoke ahead of the riot, which led to five deaths.

Several Democrats and some Republicans have raised the possibility that Trump might be prosecuted for inciting the riot, and Michael Sherwin, the acting U.S. attorney in Washington, fed such speculation when he suggested on Thursday that his office would probe the president’s role. But many legal experts are skeptical charges will be filed against Trump.

“A prosecution is possible but unlikely,” said John Banzhaf, a law professor at George Washington University. “A conviction would be even less likely.”

‘Imminent Lawless Action’

That’s because the Supreme Court said in its landmark decision in Brandenburg v. Ohio that the constitutional right to free speech protects inflammatory rhetoric unless it’s intended to incite “imminent lawless action and is likely to incite or produce such action.” The ruling overturned the conviction of Clarence Brandenburg, an Ohio Klan leader who had been prosecuted under a state law for making a speech in which he advocated violence against African Americans and Jews.

The case, in which the American Civil Liberties Union represented Brandenburg, set a high bar for criminal prosecutions of inflammatory speech. To make the case that Trump incited the riot, prosecutors would have to show that he intended to provoke violence, but his words are vague enough that it’s possible to argue that he was simply urging his supporters to peacefully protest outside the Capitol.

“Intention to incite is always difficult to show,” said Shirin Sinnar, a law professor at Stanford who studies the legal treatment of political violence. “A lot of the evidence here can be interpreted in different ways.”

Speaking to reporters on Tuesday, Trump called his remarks at the rally “totally appropriate,” rejecting any blame for the attack. He instead cast efforts to impeach him as a “terrible thing” that was causing “tremendous anger.”

Some legal experts believe Trump’s remarks ahead of the riot clearly crossed the line.

“This is not protected by Brandenberg,” Laurence Tribe, a constitutional law professor at Harvard and frequent Trump critic, said Tuesday on Bloomberg Television. “This guy was inciting not just imminent lawless action, but the violent decapitation of a coordinate branch of the government, preventing this peaceful transition of power and putting a violent mob into the Capitol while he cheered them on.”

To prove intent, prosecutors could parse the language Trump used in his speech, highlighting particular words or phrases that seem to urge violence. They could also point to Trump’s comments in a video released only after police had started regaining control of the Capitol: “We love you, you’re very special.”

‘Trial by Combat’

Still, those comments are “a far cry from inciting violence,” said Ediberto Roman, a professor at Florida International University College of Law. Giuliani, who called for “trial by combat” to settle the president’s election-fraud claims,” was “far closer to promoting violence,” Roman said, though the former New York mayor would also be hard to successfully prosecute.

The “high crimes and misdemeanors” standard to impeach the president under the Constitution is more flexible, and several Trump allies like former New Jersey Governor Chris Christie have said he clearly committed an impeachable offense by encouraging the rioters. House Democrats on Monday introduced a resolution to impeach Trump for inciting the insurrection at the Capitol, setting up a vote this week unless Vice President Mike Pence and a majority of Trump’s cabinet invoke the Constitution’s 25th Amendment to remove Trump.

But it’s unclear how many Republicans will want to take a politically difficult vote to remove a president of their own party. Speaking to CNN on Sunday, U.S. Senator Pat Toomey suggested criminal prosecution might be an alternative to impeachment in terms of holding Trump accountable.

Federal prosecutors have so far sent mixed signals. Though Sherwin emphasized that the Justice Department was scrutinizing “all actors,” his top deputy, Ken Kohl, said the following day that he did not expect charges against people who gave speeches at the rally. Ultimately, however, the decision whether or not to prosecute Trump will be up to the leaders of the Justice Department under Biden, who has said he will nominate federal appeals court judge Merrick Garland to be attorney general.

White House Subpoenas

Some former prosecutors say Trump’s actions offer enough evidence of intent to justify at least an investigation. A grand jury could subpoena internal White House communications to help U.S. prosecutors determine whether Trump or his associates knew that some of the rioters had come to Washington intent on committing violence.

“I wouldn’t say it’s a slam dunk, but if I’m a prosecutor, I feel pretty good about my proof of intent,” said Randall Eliason, a former assistant U.S. attorney in Washington. “This crowd did exactly what Trump wanted.”

It’s the same kind of evidence that prosecutors are currently scouring concerning people that directly participated in the riot. If they can find rioters conspired with one another, they’ll use social media posts, email and phone communications, police observations of rioters’ behavior and communications to try to prove their cases, said Mike Shepard, a former Justice Department official.

Federal prosecutors have already charged more than 50 participants in the Capitol siege, accusing them of a range of offenses from trespassing to assault, and are also investigating as a murder the death of Capitol Police Officer Brian Sicknick.

​Harry Sandick, a former federal prosecutor, said a number of the rioters could ultimately face charges of participating in a seditious conspiracy, which involves two or more people agreeing to use force to hinder the execution of U.S. law or seize U.S. government property, according to statute. Many rioters seemed to have in mind the goal of stopping Congress from certifying Biden’s election victory.

“There is evidence of coordination on social media by the rioters with each other,” said Sandick. “There are also statements by the rioters that they understood their actions to be at Trump’s request.”

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