Don’t Jail Trump for January 6

As the latest testimony at the January 6 committee hearings makes clear, there is no doubt that former President Donald Trump is morally responsible for the attack on the U.S. Capitol.

But there's a big difference between being morally responsible and being criminally liable, and anyone who thinks this is going to end with Trump being prosecuted for incitement, and then going to prison, desperately needs a reality check.

Eyewitness testimony from the January 6 hearings earlier this week does show that Trump wanted his supporters to march to the Capitol. "I will be making a Big Speech at 10AM on January 6th at the Ellipse (South of the White House)," he wrote in a draft tweet that was never sent "Please arrive early, massive crowds expected. March to the Capitol after. Stop the Steal!!"

On December 19, he tweeted: "​Big protest in D.C. on January 6th. Be there, will be wild!"

During his actual speech just before the attack, Trump told his supporters to "fight like hell" and to march to the Capitol "peacefully and patriotically." Shortly after, the protests got out of hand, and some members of the crowd smashed the windows of the Capitol, pushed past police, and invaded the building.

It's fair to hold Trump responsible for that; if he had not stoked the mob's anger by falsely claiming, repeatedly, that Democrats were stealing the election from him, there would have been no riot.

But do Trump's actions meet the legal definition of incitement to violence? No.

Under federal law, incitement is defined as "urging or instigating other persons to riot." The landmark 1969 Supreme Court case Brandenburg v. Ohio established that speech must be both likely to incite "imminent lawless action" and "directed" at achieving that result.

Trump's words inspired lawless action but didn't specifically call on the mob to engage in it. Asking his supporters to march to the Capitol is protected by the First Amendment.

Now some media commentators have said that recent testimony from Cassidy Hutchinson, a former White House aide, changes the equation: She said under oath that Trump knew that some of the protesters were armed with weapons, and didn't seem to care.

But that isn't legally relevant. People don't lose their First and Second Amendment rights just because they're exercising them at the same time.

We should be glad that these rights are protected by the Constitution. You may not like Trump. Personally, I think he's unfit for office. But we don't want to live in a country where people can be sent to jail because they said the wrong thing. Everybody benefits from a legal regime in which the rights to speak, to protest, and to be armed are vigorously protected.

So let's not send Trump to jail. Let's just never send him back to the White House.