In a sure sign of desperation over the DOJ investigation of the former guy’s January 6th insurrection attempt at the US Capitol building, TheHill and FOX legal shill Jonathan Turley has published an editorial trying to present a desperate false equivalency between Trump inciting the crowd to violence during his January 6th speech, and Maxine Waters’ statements calling for protesters in Brooklyn Center Minnesota to “stay in the street” and “get confrontational” with police. Turley claims that Waters’ statements could undermine her participation in a lawsuit brought by House Members against the former guy.
In his op-ed Turley states: “Waters insists that Trump telling his supporters to go to the Capitol to make their voice heard and “fight” for their votes was actual criminal incitement. Conversely, Waters was speaking after multiple nights of rioting and looting, telling protesters to stay on the streets and get even more confrontational. Waters has now guaranteed that she could be called as a witness by Trump in his own defense against her own lawsuit.”
Turley’s statements is speculation and projection. The relevant legal standard in this matter comes from the case Brandenburg v. Ohio. In that case the Supreme Court decided that even language calling for violence is protected by the First Amendment, unless it can be shown that language led directly to violent action. The case involved a number of Klan members and basically said that if a group of Klan members are sitting around talking about white supremacy, but they don’t go out and commit acts of violence, then their language is protected speech, but if that group of Klan members gets all worked up and goes out and commits a lynching, then the speech is considered criminal incitement. By that standard Trump’s speech on January 6th was an act of criminal incitement. The “moment of incitement” occurred during the speech when the first wave of insurrectionists left the site of the speech to go to the Capitol building and begin damaging security barricades and attacking Capitol Police Officers. We know that Trump’s words constituted acts of incitement as numerous protesters who have been taken into custody have testified in court that they were there at the behest of President Trump.
The reason that Turley’s statement is a false equivalency, is that in order to make the same claim about Water’s statements, you would have to arrest and interrogate a broad cross-section of protesters who engaged in looting and violence and interrogate them as to their motivations, or show examples where individuals who were arrested testified in court that they were there at Waters’ calling. Without such evidence, Turley’s claim is entirely defunct, and should be struck from the record as projection and speculation.
Turley goes on to claim that: “The reason is that an actual criminal case would lead to a rejection of not just the charge but the basis for the second Trump impeachment. Trump’s Jan. 6 speech would not satisfy the test in Brandenburg v. Ohio, where the Supreme Court stressed that even “advocacy of the use of force or of law violation” is protected unless it is imminent. Trump did not call for the use of force but actually told people to protest “peacefully” and to “cheer on” their allies in Congress. After violence erupted, Trump later told his supporters to respect and obey the Capitol Police.”
Turley again engages in wild duplicity. Trump’s use of the word “peacefully” one time in a 20 plus minute speech does not absolve him of using the word “fight” 21 times in that same speech. Also, given Trump’s rambling and digressionary manner of speaking, many of his supporters may have disregarded the word “peacefully” entirely, in favor of the far more frequently spoken word “fight”. It’s also necessary to interrogate the President as to whether anyone advised him with statements akin to “make sure you tell them to be peaceful so if these people do anything crazy you’re not responsible,” which is quite likely given that Trump’s lawyer Rudy Giuliani was on the stage at the time. It was very clear from the context of the speech that Trump’s goal was to delay the certification of the Electoral College vote by Congress. Such an act is a perversion of a Constitutionally mandated process for the execution of elections, and constitutes criminal intent. One mealy mouthed disclaimer does not absolve Trump of guilt. Additionally, Trump’s later calls to respect the Capitol Police only happened after a delay of multiple hours where the President was reportedly “delighted” at news of the attack, and couldn’t understand why people in the White House didn’t share his joy over the events. News of Trump being “delighted” at the attack, his delay in ordering a response from the National Guard, and reports of him being angry and sullen after the election results were certified later in the day provides ample proof of criminal intent on Trump’s part.
Turley also tells another desperate lie by falsely equating lawsuits by House members against Trump for emotional distress with a lawsuit by the Westboro Baptist Church. Turley states: “In 2011, the court ruled 8-1 in favor of Westboro Baptist Church, an infamous group of zealots who engaged in homophobic protests at the funerals of slain American troops. In rejecting a suit against the church on constitutional grounds, Chief Justice John Roberts wrote: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and – as it did here – inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker.” Turley ignores the fact that emotional distress was caused not by Trump’s speech, but by a physical attack that Trump incited that led to the evacuation of both Chambers of Congress. The Westboro case is entirely irrelevant to the conversation. The emotional distress was caused by the immediate physical threat to members of Congress, not Trump’s speech. Turley’s argument should be disregarded as a desperate attempt at misdirection.
Turley ends his ridiculous screed with a statement from Carl Jung that reads: “Everything that irritates us about others can lead us to an understanding of ourselves.” The real lesson from reading Turley’s desperate false equivalency and misdirection is that Democrats need to get more aggressive about countering half-assed legalistic arguments from clowns like Turley, and stop being so complacent when conservative pundits misrepresent the law, and engage in far-flung speculation, projection and misdirection.