With rioting continuing in Brooklyn Center, Minn. and around the country, Rep. Maxine Waters, D-CA, went to Minnesota and told the protesters that they “gotta stay on the street” and “get more confrontational.”
The statement is ironic since Waters is one of the House members currently suing former President Donald Trump and others for inciting violence on January 6th with his words on the Mall. 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 and telling protesters to stay on the streets and get even more confrontational. There was violence after the remarks, including a shooting incident where two National Guard members were injured. Waters has now guaranteed that she could be called as a witness by Trump in his own defense against her own lawsuit.
Waters’ most recent words could well be cited in the ongoing litigation over the January 6th riot on Capitol Hill. As I have previously discussed, the lawsuit by House members and the NAACP may prove a colossal mistake. It is one of a number of lawsuits, including a lawsuit filed by Rep. Eric. Swalwell, D-Cal, that could ultimately vindicate Trump shortly before the next election.
While it is possible that members could find a trial judge to rule in their favor, these lawsuits should fail on appeal, if they get that far. Moreover, they would fail under a lower standard of proof than the “beyond a reasonable doubt” standard in criminal law. Such a result would eviscerate the claim that Trump was guilty of criminal incitement in his speech.
After the riot, various legal experts appeared on news channels to proclaim that this was a strong if not conclusive case for criminal incitement. Trump was clearly guilty of criminal incitement. CNN legal analyst Elie Honig declared “As a prosecutor I’d gladly show a jury Trump’s own inflammatory statements and argue they cross the line to criminality.”
Richard Ashby Wilson, associate law school dean at the University of Connecticut, said “Trump crossed the Rubicon and incited a mob to attack the U.S. Capitol as Congress was in the process of tallying the Electoral College vote results. He should be criminally indicted for inciting insurrection against our democracy.” District of Columbia Attorney General Karl Racine then thrilled many by declaring that he was investigating Trump for a possible incitement charge.
As I have previously written, these statements ignored both the elements of that crime and controlling case law. Notably, while these and other experts insisted that the crime of incitement was obvious and public on Jan. 6th, there has been no charge brought against Trump despite over four months. Why?
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.