February 8, 2021 – Tomorrow the Senate Trial begins once ‘again’ for the 45th ‘former’ president of the United States. Remarkably, Trump is the first president ‘ever’ in the nation’s 245 year history, ever to be impeached twice – yet by the looks of the carnage his supporters left in the wake of the Capitol siege – deservedly so. Still, many of his defenders believe a president can lie, rile up crowds based upon those lies, under the guise of free speech rights under the First Amendment. But the first amendment is not limitless, and there are some things even a president – or especially a president cannot say and do.
Protections afforded by the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The basis of what protections are afforded the American people was circumscribe in 1969, US Supreme Court ruling in Brandenburg v. Ohio. In that case, a Ku Klux Klan leader by the name of Brandenburg gave a speech at a Klan rally, which included burning a cross and effigies of violent remark. Brandenburg was convicted under an Ohio law making it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform,” as well as assembling ” with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” (Meaning he was advocating and inciting “syndicalism” which is a radical current in the labor movement to establish local, worker-based organizations and advance the demands and rights of workers through strikes.)
In hearing the facts and circumstances surrounding Brandenburg, the US Supreme Court held that the KKK leader – Brandenburg’s first amendment rights were violated because it found the Ohio law that he was convicted under was “overbroad” and thereby unconstitutional – meaning it was “overinclusive” and too much conduct could be deemed criminal, and in violation of the law.
TWO PRONG TEST OF BRANDENBURG
The US Supreme Court used a two-pronged test to evaluate Brandenburg’s speech – and this analysis is used today to determine if the speech in question is prohibited under the First Amendment:
(1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”
The Court issues a Per Curiam opinion – which means a court was in unanimous agreement – held that the Ohio law violated Brandenburg’s right to free speech – was “overbroad,” meaning it criminalized too much speech. More to the point, the Court did not find any “imminent” lawless action on behalf of Brandenburg. That is, there were no actions taken after the inciting speech. They had guns, they had inflammatory words, they had cross burning – but that was it.
CAPITOL SIEGE ON JANUARY 6, 2021 COMPARED
However, on the day of the US Capitol siege on January 6, immediately preceding the lawless action by his supporters, there were Trump’s inflammatory remarks – using “fighting words” – telling his people they have to “fight like hell” or you “won’t have a country”. Many in the audience repeated his chants in response to his remarks. With that he pointed them at the Capitol, as if they were a loaded gun, and sent them on their way. His countless calls to action solidified his supporters that day, so much so that any “reasonable” supporter would understand, subjectively that they were called to action. In fact, many of those arrested that day, did in fact admit once in custody that they followed the call to action of their president.
Unlike the Brandenburg case, Trump not only directly incited by telling the crowd that the election had been stolen and they all had been cheated, but he riled them up, pointed them at the Capitol and told them they needed to “fight like hell” to take back the country. He even lied to them that he would accompany them. What is even more telling of his ill will, he threw his Vice President under the bus, telling his supporters that the VP was not helping him to halt the the electoral ballot certification – even though any lawyer knows that the VP has no such power. Yet, Trump branded his VP as a traitor to “him” – causing the unwieldy mob to chant “hang Mike Pence” and brandishing equipment that could do just that – killing and injuring Capitol Police in the process.
BREACH OF OATH OF OFFICE
But what is most telling about the president’s conduct – is his dereliction of his duty – his oath of office to Protect & Defend the Constitution of the United States.
The Oath, as stated in Article II, Section I, Clause 8 of the U.S. Constitution, is as follows:
“I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”
If Trump truly did not want the Capitol and lawmakers to be under siege, he could have called out for reinforcements as he saw the events unfolding as he watched them on TV. After hours under siege, it was the work of one Senator and the Governor of Maryland trying to get the national guard to help the Vice President and other lawmakers under siege. The Vice President, his family and lawmakers were hiding within the Capitol, fearing for their lives, while trying to get the attention of those in law enforcement who could come to their aid. The Governor of Maryland expressed his despair, as he contacted both Homeland Security and the Pentagon trying to get immediate assistance. The governor of Maryland could not deploy the state national guard onto Federal Property – which is where the US Capitol sits. Yet, that was the job of the President to protect and defend – and it is clear that he abdicated that duty.
COMPLICIT IN INSURRECTION AND MURDER
So to all those who defend the conduct of the president, and all the lawmakers who were complicit in the lie of election fraud and the election being stolen – they all should pay the price of aiding and abetting not only a lie – a Big Lie that puts democracy in peril – but an insurrection on the seat of democracy, and on lawmakers.
Those on the inside who directly colluded in this insurrection, by their actions, contributed to the deaths and injuries of those both who swarmed the Capitol as well as those who were gravely injured and died protecting it – Capitol Police. The conduct of the insurrectionists can be clearly imputed to the president. He is a co-conspirator, and clearly has blood on his hands, as if he had killed the people himself. He set something deadly in motion and it came to fruition. But for his conduct and those of his enablers, this siege would not have happened.
THE LAST CHAPTER
Trump and his enablers may very well be prosecuted outside of impeachment in criminal court. Not only is inciting imminent lawless action a crime – it was foreseeable that death and destruction would follow in the wake of incendiary lies and violence he incited and propelled forward. Trump may not be convicted in his Senate Impeachment Trial by his GOP enablers, but he may ultimately be convicted by a jury trial of unbiased men and women. Only time will tell which chapter will be his last – either way Trump may be trading in his title of Apprentice for that of Accomplice this season.
Mary Kay Elloian, MBA, JD, Esq.
The Legal Edition-Legal, Business & Policy News
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