Written by Adam Liptak
When Donald Trump was running for president in 2016, he pointed to some protesters at one of his rallies and told the crowd to “get ’em out of here.” The protesters, who said they were then viciously assaulted, sued him for inciting a riot.
Trump won the suit. A federal appeals court, relying on a case concerning the Ku Klux Klan, ruled that his exhortation was protected by the First Amendment. And now his lawyers are making the same argument at his impeachment trial, where he stands accused of inciting an insurrection.
But Democrats say that argument misses two key points. An impeachment trial, they contend, is concerned with abuses of official power, meaning that statements that may be legally defensible when uttered by a private individual can nonetheless be grounds for impeachment.
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Equally important, they say Trump’s statements on Jan. 6 should not be considered in isolation but as the final effort of a calculated, monthslong campaign to violate his oath of office in an effort to retain power.
Rep. Jamie Raskin, D-Md., the lead impeachment manager, said Wednesday that Trump’s words that day met any conceivable standard for incitement.
“Donald Trump surrendered his role as commander in chief and became the inciter in chief of a dangerous insurrection,” Raskin said, adding that Trump’s actions were “the greatest betrayal of the presidential oath in the history of the United States.”
Stacey E. Plaskett, a Democratic delegate from the Virgin Islands, said Trump’s statements were the culmination of a pattern of conduct that deliberately encouraged lawlessness. “Donald Trump over many months cultivated violence, praised it,” she said. “And then when he saw the violence his supporters were capable of, he channeled it to his big, wild historic event.”
Trump’s call to the crowd in 2016 had none of that baggage, but Judge David J. Hale of the U.S. District Court in Louisville, Kentucky, allowed a lawsuit against him to proceed, writing that incitement is a capacious term. Quoting Black’s Law Dictionary, he wrote that it defined as ‘the act or an instance of provoking, urging on or stirring up,’ or, in criminal law, ‘the act of persuading another person to commit a crime.’”
Hale also wrote that the protesters could satisfy the demanding First Amendment limits the Supreme Court had placed on incitement suits.
Precisely because the definition of incitement is so vague, the Supreme Court has placed strict constitutional limits on lawsuits and prosecutions seeking to punish it.
In 1969, in Brandenburg v. Ohio, for instance, the court unanimously overturned the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism.
The Klan leader, Clarence Brandenburg, had urged his followers at a rally to “send the Jews back to Israel,” to “bury” African Americans, though he did not call them that, and to consider “revengeance” against politicians and judges who were unsympathetic to white people.
Only Klan members and journalists were present. Because Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.
“The constitutional guarantees of free speech and free press,” the court said in an unsigned opinion, “do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Hale said the account of the rally presented in the protesters’ lawsuit could clear the high bar. “It is plausible that Trump’s direction to ‘get ’em out of here’ advocated the use of force,” the judge wrote. “It was an order, an instruction, a command.”
He added that the protesters had, at least at an early stage of the litigation, plausibly maintained that Trump had “intended for his statement to result in violence” and “was likely to result in violence.”
But the 6th U.S. Circuit Court of Appeals, in Cincinnati, reversed Hale’s decision, ruling that the Brandenburg decision protected Trump. “In the ears of some supporters, Trump’s words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave,” Judge David W. McKeague wrote for the majority, “but they did not specifically advocate such a response.”
It was significant, too, McKeague wrote, that Trump had added a caveat to his exhortation, according to the lawsuit. “Don’t hurt ’em,” Trump said. “If I say ‘go get ’em,’ I get in trouble with the press.”
Trump offered a similarly mixed message on Jan. 6. Even as he urged his supporters to “go to the Capitol” and “fight like hell,” he also made at least one milder comment. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” he said.
Ordinary courts might consider the speech in isolation and credit the occasional calmer passage. But the House managers are urging the Senate to hold a president to a different standard, one that takes account of the months of actions and statements leading to the speech and that holds him responsible for any call to violence or lawlessness.
Jonathan H. Adler, a law professor at Case Western Reserve University, wrote that Trump might be protected by the Brandenburg decision — in court.
“However awful and unpresidential his comments may have been, I will accept for the sake of argument that they did not pose a sufficient risk of inducing imminent lawless action of the sort necessary to sacrifice First Amendment protection,” Adler wrote in a blog post. “Would that mean he could not be impeached for those remarks? Not at all.”
The Constitution allows impeachment for “treason, bribery or other high crimes and misdemeanors.” That last phrase — “other high crimes and misdemeanors” — is vague, but it plainly does not encompass every ordinary crime. Rather, it follows two offenses that give a general sense of the kinds of crimes the framers had in mind: treason and bribery. Those are crimes against the state and the rule of law that undermine the ability of the government to function.
Constitutional scholars say that similar offenses — ones involving the use of official power to threaten the constitutional order — are what the framers believed could justify removal from office and disqualification from further service.
The distinction between criminal and impeachable conduct helps explain why Trump’s First Amendment defense has no place in the Senate trial, Keith E. Whittington, a professor of politics at Princeton, wrote in a blog post.
“It is not hard to imagine examples of speech that would be constitutionally protected if uttered by a private citizen but that could and should be grounds for impeachment and removal if uttered by the president of the United States,” he wrote.
Trump’s lawyers, in their trial brief, said their client’s remarks were “core free speech under the First Amendment,” adding that “there can be no dispute that elected public officials engage in protected speech when they speak out on investigations of voting regularity and fairness.”
In their own trial brief, House managers said Trump had it backward. “Most fundamentally,” they wrote, “the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.”
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