This is from an opinion article by Jeffrey Scott Shapiro in the Wall Street Journal. Shapiro served as an assistant attorney general of the District of Columbia, 2007-09. He is a White House appointed official at the U.S. Agency for Global Media.
The piece notes that making people emotional is not a crime.
According to Shapiro:
House Democrats have drafted an article of impeachment that accuses President Trump of “incitement to insurrection.” Acting U.S. Attorney Michael Sherwin said Thursday that his office is “looking at all actors here and anyone that had a role” in the Capitol riot. Some reporters have construed that as including Mr. Trump.
The president didn’t commit incitement or any other crime. I should know. As a Washington prosecutor I earned the nickname “protester prosecutor” from the antiwar group CodePink.
In the District of Columbia, it’s a crime to “intentionally or recklessly act in such a manner to cause another person to be in reasonable fear” and to “incite or provoke violence where there is a likelihood that such violence will ensue.” This language is based on Brandenburg v. Ohio (1969), in which the Supreme Court set the standard for speech that could be prosecuted without violating the First Amendment. The justices held that a Ku Klux Klan leader’s calls for violence against blacks and Jews were protected speech. The court found that Clarence Brandenburg’s comments were “mere advocacy” of violence, not “directed to inciting or producing imminent lawless action . . . likely to incite or produce such action.”
The president didn’t mention violence on Wednesday, much less provoke or incite it. He said, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”