Noah Rothman: There are a number of reasons these particular charges are likely a legal overreach.
to prosecute people for “the verbal or nonverbal expression of an idea merely because society finds the idea offensive or disagreeable.” To convict Trump of incitement, prosecutors would have to prove to a jury’s satisfaction that Trumphis followers were prepared for imminent lawlessness, that lawlessness was likely, and that it was his intention to incite them to violence. There’s a reason why the “Brandenburg test” is rarely applied.
If the Senate’s judgment in Trump’s second impeachment trial is relevant because a majority voted to convict, it is just as relevant that a supermajority vote to convict him failed to materialize. A clever prosecutorial team working off the information uncovered by the committee and subsequent investigations into the loose threads it explicitly left to the Justice Department to pull on could perhaps satisfy the “imminence” standard established in judicial precedent. But what about Trump’s intent? The former president had no reasonable expectation that a violent mob would materially benefit him either politically or by somehow thwarting the certification of the 2020 election results.
If the Senate’s judgment in Trump’s second impeachment trial is relevant because a majority voted to convict, it is just as relevant that a supermajority vote to convict him failed to materialize. Trump was, in fact, acquitted of the charges against him. We can only imagine what went through the minds of the Senators who voted for acquittal.
Of course, the Justice Department could follow through with the committee’s recommendations in whole. Prosecutors might secure a conviction, and that conviction might be upheld through an appeals process that is sure to go all the way to the top. But the barriers before prosecutors are almost insurmountably high for a good reason, and a successful prosecution of Trump on these grounds would likely
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