President Donald Trump’s speech on Wednesday in Washington, DC, was “not even close” to incitement to violence, said Harvard Law School professor emeritus Alan Dershowitz in an interview on SiriusXM’s Breitbart News Sunday with host Joel Pollak. However Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, characterized the president’s speech as “impeachable” and incitement to “insurrection.”
Dershowitz said, “It’s not even close. The president is guilty of bad judgment. The president should not have given the speech he gave. I strongly oppose it, but under Brandenburg versus Ohio, he was not even close to the line that separates constitutionally protected advocacy from unconstitutionally protected imminent incitement to violence.”
Dershowitz continued, “[Trump] made a speech similar to those made by many people over the last 100 years, from labor leaders, civil rights leaders, Klan leaders — good and bad, both — who say, ‘Go to the Capitol, protest, go to the Capitol, fight back,’ and then what happened in the Capitol is, of course, a total disaster, and the people who did it should be prosecuted to the hilt, but to prosecute the speaker would be to violate the core principles of freedom of speech that we had for for many decades and many generations.”
Shapiro said, “I do think that that what Trump did is an impeachable offense, and inciting an insurrection and inciting violence against the Capitol, his treatment of the National Guard, various other things. You can dress it up in various ways, and it doesn’t have to be a crime. It’s not First Amendment analysis of whether he can be criminally prosecuted for his speech or anything like that, before we get to the analysis.”
Pollak sked, “So the legal definition of incitement doesn’t seem to have been met here, but you’re saying he would be impeached for incitement?”
Shapiro replied, “It’s sort of the culmination of months of lying to the people, on spreading conspiracy theories, and ultimately whipping up a mob that goes and tries to stop the process of certifying electoral votes. I think what he’s charged with, what he’s done — it’s for the Senate to try — but certainly it meets the standard of an indictment of an impeachment charge. for for the House.”
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