Could Trump be prosecuted for inciting the attack on the Capitol? By Reuters

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By Tom Hals and Jan Wolfe (Reuters) – US President Donald Trump is unlikely to face criminal charges in connection with the violent siege of the US Capitol last week due to the US’s extensive free speech protections. country, some legal experts said. Here’s an explanation as to why lawyers, including those who think Trump should be indicted for his comments, say such a case would be an uphill battle for prosecutors. WHAT DID TRUMP SAY IN HIS SPEECH? For more than two months, Trump has falsely claimed that the November 3 election was marred by widespread fraud and has sought to subvert the electoral process. On January 6, as lawmakers certified the victory of Democrat Joe Biden, Republican Trump took a stage near the White House and called on a crowd of supporters repeatedly to “fight,” using the word more than 20 times, and “don’t take it seriously.” more. “Trump told the crowd that they should” be strong “before instructing the” patriots “in a march to the Capitol.” After this, we will come down and I will be there with you, “Trump said. speech, Trump told the crowd that they should “make their voices heard in a peaceful and patriotic manner.” Trump returned to the White House after the comments and reportedly saw the attack on television on Capitol Hill, telling reporters that his words have been scrutinized “and everyone … thought it was totally appropriate.” WHAT CRIMES CAN TRUMP BE CHARGED OF? There is a chapter of US law that deals with “subversive activities.” A law It is a criminal offense to participate in a “rebellion or insurrection” against the federal government. Another statute, known as a seditious conspiracy, prohibits conspiracies to “overthrow” the United States government or seize government property by force. e Columbia has its own penal code, which says that anyone who “intentionally incites or exhorts other people to participate in a riot” will face a fine or up to 180 days in prison. WHAT WOULD TRUMP’S DEFENSE BE? Trump would have a strong argument that he participated in the free speech protected by the First Amendment to the U.S. Constitution, legal experts said. Trump can argue that his rhetoric was ambiguous enough, and that when he said “fight” he was not referring to attacking the Capitol, they said. In a landmark 1969 case, the Supreme Court overturned the conviction of an Ohio Ku Klux Klan leader, Clarence Brandenburg, for his brief speech at a rally urging a dozen supporters to go to Washington and attack the politicians. The court said prosecutors have to show that the speech is intended to incite “imminent illegal action” and is likely to produce such action. “My own tentative view is that it was speech protected by the First Amendment and therefore should not be subject to criminal liability,” said Ilya Somin, a law professor at George Mason University, adding that Trump’s rhetoric he continues to be the subject of impeachment by Congress, considering his position as an elected official. Paul Smith, a lawyer who has defended liberal cases in the United States Supreme Court, said the Brandenburg case shows that Trump’s speech was constitutionally protected. “If you were there with a megaphone in the outer courtyard of the Capitol and urging people to charge through the windows, break them and take Congress hostage, in that situation you would be responsible for what the crowd did,” Smith said. An FBI office in Virginia warned that extremists planning to travel to Washington were talking about “war,” according to a Washington Post report. If Trump knew of the report or recklessly ignored it, it would increase the likelihood that a prosecutor would indict him, said Alexander Tsesis, a professor at Loyola University School of Law in Chicago. Prosecutors would still have to prove beyond any doubt that Trump intended to incite the crowd to violence and such illegal activity was imminent and likely. To file a seditious conspiracy case, prosecutors would need more information about the president’s activities before, during and after the violence to determine whether he was aware of a planned attack or provided assistance, legal experts said. IS THE PROCESS LIKELY? Based on current public information, legal experts doubt that the incoming Biden administration would go after a former president. The move could risk distracting the new government and unleashing a political storm in a divided America. Biden has previously said that a Trump prosecution would be bad for the country, but that it would not interfere with the Justice Department’s decision-making. A senior District of Columbia prosecutor Ken Kohl told reporters on January 8 that he did not expect to see a criminal case against Trump for inciting violence. Smith said he thought the Biden administration would be cautious about initiating an “indictment that transcends the limits of constitutional law” right after taking over from Trump. “That would be quite aggressive.”