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Trump’s speech is probably defensible in every court — except perhaps the Senate

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The Senate will now decide whether President Donald Trump should be convicted on the House charges of incitement of insurrection, and there has also been discussion of potential criminal charges against Trump after he leaves office, arising from the same conduct. These would include federal crimes, such as advocating the overthrow of government, rebellion and insurrection.

But it would be difficult to convict Trump in a conventional criminal trial for his speech, even if the Senate convicts him. And if the Senate follows First Amendment precedent, he could escape conviction there, too.

There’s no question that freedom of speech is not absolute. The First Amendment does not sanction incitement to riot. When an immediate threat to public safety, peace or order appears, the power of the government to punish speech is obvious.

On the other hand, the free-speech clause of the First Amendment protects a wide variety of speech even if listeners may consider it deeply offensive. Speech is not “incitement” unless (1) there is proof the speaker intended the speech to produce imminent lawlessness and (2) the speech is likely to produce that lawlessness.

Speech with only violent imagery would be protected by the First Amendment. Even the mere tendency of speech to encourage unlawful acts is not enough to punish it, according to the Supreme Court.

Punishable incitement must “specifically advocate” for listeners to take unlawful action, give the crowd detailed instructions on how to break the law, or enlist the crowd to carry out a criminal act, the high court has said.

Under the Supreme Court’s Brandenburg test, speech cannot constitute incitement unless the speaker intends lawlessness to result.

Some, including senators in Trump’s trial, will point out that the rioters stormed the Capitol after hearing Trump’s speech. To them, the evidence that the speech incited violence is apparent: there was violence after it.

But defining the speech by the audience’s reaction, however, may be an unconstitutional “heckler’s veto,” as a legal doctrine is known.

The heckler’s veto doctrine provides that the hostile reaction of a crowd does not transform protected speech into incitement. A speaker is not automatically liable for the acts of anyone who was at an intended peaceful demonstration. Rather, the speaker must have the intent to engage in the criminal conduct.

Some will argue that Trump’s intent was evident in his use of words like “strength” and “fight.” That may be. Courts have protected arguably more violent speech in other cases. Statements such as “We’ll take the street again” and “If we catch any of you going into these racist stores, we’re going to break your damn neck” appear closer to advocating violence than the language in Trump’s speech.

There’s also the issue of “imminence” required for incitement. There was no reported violence at Trump’s speech, which was at the Ellipse. The Capitol is more than a mile away. The invasion of the Capitol clearly happened after the rally, but not seconds after the rally, and not in the same place as the rally.

Even if there is proof Trump “intended” to cause violence with his speech, and even if there is proof that the violence he intended to cause was storming the Capitol, there is potentially an issue of whether the violence was “imminent” enough to be criminal.

Some will conclude that words like “fight” and “strength” gave the crowd the detailed instructions to violently enter the Capitol building. The Senate can still convict even if reasonable minds can differ on these factual conclusions. A criminal jury must be unanimous.

A criminal jury is bound by the reasonable doubt standard. The Senate is not. It is bound by the two-thirds supermajority vote standard and not much else.



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Brexit Britain remains top choice for finance firms – 'Why would anyone move to Paris?'

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THE CITY of London will continue to thrive in Brexit Britain with it remaining a top choice for firms, an independent economist has said.

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Biden will instruct FEMA to establish ‘thousands’ of Covid vaccination centers

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Trump’s leaving the White House, but the party is still his

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WASHINGTON — If you’re Liz Cheney, Mitch McConnell or Mitt Romney, here is your challenge as impeachment moves to a Senate trial: The GOP is still Trump’s party.

At least for now.

According to brand-new numbers from our NBC News poll, only 8 percent of Republican voters support Trump’s impeachment and removal from office.

That’s compared with 50 percent of all voters who say this, including 89 percent of Democrats and 45 percent of independents.

What also stands out: These percentages — overall and by party — are virtually identical to the impeachment/removal numbers for Trump during the Ukraine scandal.

It’s largely the story of the Trump Era: The numbers and partisan divide rarely change, even after an assault at the Capitol.

And just check out the opening paragraphs from this New York Times story.

“In Cleveland County, Okla., the chairman of the local Republican Party openly wondered ‘why violence is unacceptable,’ just hours before a mob stormed the U.S. Capitol last week. ‘What the crap do you think the American revolution was?’ he posted on Facebook. ‘A game of friggin pattycake?’”

“Two days later, the Republican chairman of Nye County in Nevada posted a conspiracy-theory-filled letter on the local committee website, accusing Vice President Mike Pence of treason and calling the rioting a ‘staged event meant to blame Trump supporters.’”

“And this week in Virginia, Amanda Chase, a two-term Republican state senator running for governor, maintained that President Trump might still be sworn into a second term on Jan. 20 and that Republicans who blocked that ‘alternative plan’ would be punished by the president’s supporters.”

If you’re a Republican opposed to Trump — or simply to how he conducted himself before last week’s attack — you’re in the minority of your party.

Back to the virus

Since Jan. 6 — the day of last week’s attack at the Capitol — this country has seen more than 2 million new coronavirus cases and more than 28,000 deaths from the virus.

Think about that again: In a little more than a week, 2 million new cases (!!!) and 28,000-plus deaths.

It’s that context — and presidential void — to view President-elect Joe Biden’s primetime address where he rolled out his $1.9 coronavirus relief package (more on that below).

The outgoing president has been MIA when it comes the coronavirus. So the incoming president has decided to take on the issue head-on before his inauguration.

And today, Biden delivers remarks on administering COVID vaccines to the U.S. population.

Data Download: The numbers you need to know today

23,421,473: The number of confirmed cases of coronavirus in the United States, per the most recent data from NBC News and health officials. (That’s 237,251 more than yesterday morning.)

389,652: The number of deaths in the United States from the virus so far. (That’s 3,954 more than yesterday morning.)

128,947: The number of people currently hospitalized with coronavirus

275.78 million: The number of coronavirus tests that have been administered in the United States so far, according to researchers at The COVID Tracking Project.

965,000: The latest initial weekly unemployment claims in the U.S.

5: The number of days until Inauguration Day.

Here’s what’s in Biden’s $1.9 trillion relief plan

President-elect Joe Biden on Thursday called for a $1.9 trillion coronavirus relief package on Thursday, per NBC’s Marianna Sotomayor.

The “American Rescue Plan” includes investments in a national vaccination program, additional direct payments and an increased federal minimum wage of $15 per hour.

“We are in a race against time. We need these resources to vaccinate the vast majority of Americans and to put safety measures in place that will help us put Covid behind us, so that we can reopen our schools, businesses, and once again be able to get there with our friends and family,” one senior transition official said on a briefing call with reporters.

Here’s some of what the plan asks for:

  • Containing Covid-19 and reopening schools by mounting a national vaccination program – Total: $416B. (That amount includes $20 billion for a national vaccination program and $170 billion to for schools).
  • Helping working families struggling from suffering economy – Total: $1 trillion. (That amount includes $1,400 per person direct payments and $400/week unemployment insurance programs for hard hit Americans).
  • Assisting small businesses, including minority business owners. (That includes $350 billion in emergency funding for state, local and territorial governments to pay frontline workers, as well as $15 billion in grants to help hardest-hit small businesses).

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ICYMI: What else is happening in the world

Don’t miss this piece from Benjy Sarlin on how members of Congress are fearful even of some of their own colleagues.

And here’s the Washington Post on how some Capitol Police were battered at the hands of protestors.

GOP Sen. James Lankford has apologized to Black Tulsans for questioning the 2020 election results.

Here’s how Facebook and Twitter decided to make their moves on Trump’s accounts last week.

Biden has selected his deputy CIA director.

And he has picked his new director of vaccine efforts.

Rudy Giuliani may be on the outs with most of Trump World, but he still wants in.

The New York Times talked to GOP state and local leaders all over the country. Many described their devotion to Trump with an almost religious fervor.



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