One of the cases that was cited yesterday by Trump’s impeachment team is the case of Brandenburg v. Ohio, 395 U.S. 444 (1969). For those of you who are not lawyers — which I assume is most of you — let me show you how Brandenburg is not a good case for Trump. It’s the right case but applied for the wrong reason.

Background

Brandenburg was a Ku Klux Klan leader in rural Ohio who, in the summer of 1964, invited a TV reporter to cover a KKK rally in Hamilton County Ohio. Portions of the rally were filmed, showing several men making threats against blacks and Jews (among others) and announcing plans for a march on Congress to take place on the Fourth of July. Brandenburg was charged with advocating violence under Ohio’s criminal syndicalism statute. Convicted in the Court of Common Pleas, Brandenburg appealed, which the Supreme Court of Ohio dismissed without an opinion. Brandenburg further appealed to the United States Supreme Court on First Amendment grounds, which produced the seminal opinion.

Holding

“Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a State to forbid 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.”

As Applied

The Brandenburg test has become known as the “imminent lawless action” test. The key understanding it is that the law only holds you liable if there is violence that results (or could result) immediately after the speech in question. So, with respect to January 6th, the insurrection began even before Trump finished his speech. In addition, Trump — as the Commander in Chief — was the one human being in the best position to stop the insurrection. Not only did he fail to stop it, he actually encouraged it. He also prevented law enforcement from mounting an effective response.

In addition, Trump’s attorneys made the absurd argument that Trump couldn’t have incited the insurrection because elements of it were pre-planned. Well, that doesn’t help Trump at all.

• If Trump knew that elements of it were pre-planned then Trump’s speech was like firing off the starting pistol.
• If Trump didn’t know that elements were pre-planned he knew (at least) that people would march to the Capitol and that there was a chance that people would break in.

In any case, there would have been many people in the crowed who were not part of any pre-planned attack, and who only marched to the Capitol because of Trump’s exhortation. Believe me, that argument doesn’t help Trump at all.

So Brandenburg is the right case, but cited for the completely wrong reason. It doesn’t exonerate President Trump, as his attorney’s would have you believe. It convicts him.