Harry Litman - 86ing the Constitution

It’s worth noting that the charge in the indictment, as tenuous as it is, fails to track the yet more attenuated theory that Trump and his water-carriers have advanced in their public comments. That theory was that Comey was inciting unidentified third parties to kill or harm Trump. Trump went on Fox News and said flatly, “He knew exactly what that meant. A child knows what that meant. If you’re the FBI director and you don’t know what that meant, that meant assassination. And it says it loud and clear.”

Similarly, Trump Jr. accused Comey of “calling for my dad to be murdered.” Tulsi Gabbard declared that Comey should be “put behind bars” and that she was “very concerned” for Trump’s life. And Blanche at Tuesday’s press conference explicitly tied the indictment to the ballroom shooting three days ago, soberly proclaiming that the grand jury acted “at a time when this country has witnessed violent incitement followed by deadly actions against President Trump and other elected officials” and that “the temperature needs to be turned down.”

Blanche apparently is unaware that the incitement framing carries its own independently fatal constitutional problem. Conviction for inciting others to violence requires proving, as set out in Brandenburg v. Ohio, that the speech is directed at producing, and likely to produce, imminent lawless action.

We had a national seminar on Brandenburg when the question arose whether Trump’s own Ellipse speech on January 6th — thousands of people, a physical march on the Capitol, violence that followed within the hour — met that standard. Indeed, it remained in the indictment as the basis for a criminal charge even after the immunity decision of the Supreme Court. A year-old Instagram photograph of beach shells, captioned as a tourist’s curiosity, does not enter that conversation.

https://harrylitman.substack.com/p/86ing-the-constitution