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Trump did not incite a riot in any way, shape, or form. There is simply no reasonable line you can draw between Trump's statements (which, among other things, were not made at the site of the riot) and the riot. Not by the Brandenburg standard, and not by any standard which has been applied to any politician since Brandenburg.
I realize you're not American and may not be familiar with American freedom of speech traditions and jurisprudence, but there simply isn't a serious question here, and anyone who IS familiar with such traditions and jurisprudence knows it. You simply cannot take take the fact of a riot, and anodyne political statements made as part of a political demonstration ("I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard."), and infer from the latter an attempt to incite the former. Nor can you do things like "Trump claimed the election was stolen; if the election was stolen violence would be justified; therefore Trump called for violence". That's just not valid. The test is that the speech must be intended to cause imminent lawless action, and it must be likely to cause it. Ex ante likely, that is, though that doesn't much matter because it fails the "intent" test. Telling a group to march to the Capital to make their voices heard is unquestionably protected speech of the sort even Robert Bork would accept.
So you are probably right that Trump will not get his immunity. And given a DC jury, chances are pretty good that he'd be convicted; contrary your claims, I think a D.C. jury would convict Trump of anything up to and including murder without evidence of a victim. And he may indeed go to prison. And if that causes widespread violence, everyone involved in his imprisonment absolutely deserves it. I doubt it will, though; the part of Trump's base capable of widespread violence is wholly infiltrated by the FBI and/or cowed by the Jan 6 response, and the rest is all bark and no bite.
Boy it sure would be embarrassing if there was very recent and highly publicised American jurisprudence on this very topic that you were unaware of when you wrote that.
The Court concludes that Trump acted with the specific intent to incite political violence and direct it at the Capitol with the purpose of disrupting the electoral certification. Trump cultivated a culture that embraced political violence through his consistent endorsement of the same. He responded to growing threats of violence and intimidation in the lead-up to the certification by amplifying his false claims of election fraud. He convened a large crowd on the date of the certification in Washington, D.C., focused them on the certification process, told them their country was being stolen from them, called for strength and action, and directed them to the Capitol where the certification was about to take place. 294. When the violence began, he took no effective action, disregarded repeated calls to intervene, and pressured colleagues to delay the certification until roughly three hours had passed, at which point he called for dispersal, but not without praising the mob and again endorsing the use of political violence. The evidence shows that Trump not only knew about the potential for violence, but that he actively promoted it and, on January 6, 2021, incited it. His inaction during the violence and his later endorsement of the violence corroborates the evidence that his intent was to incite violence on January 6, 2021 based on his conduct leading up to and on January 6, 2021. The Court therefore holds that the first Brandenburg factor has been established. 94 295. Regarding the second Brandenburg factor, the Court finds that the language Trump used throughout January 6, 2021 was likely to incite imminent violence. The language Trump employed must be understood within the context of his promotion and endorsement of political violence as well as within the context of the circumstances as they existed in the winter of 2020, when calls for violence and threats relating to the 2020 election were escalating. For years, Trump had embraced the virtue and necessity of political violence; for months, Trump and others had been falsely claiming that the 2020 election had been flagrantly rigged, that the country was being “stolen,” and that something needed to be done. 296. Knowing of the potential for violence, and having actively primed the anger of his extremist supporters, Trump called for strength and action on January 6, 2021, posturing the rightful certification of President Biden’s electoral victory as “the most corrupt election in the history, maybe of the world” and as a “matter of national security,” telling his supporters that they were allowed to go by “very different rules” and that if they didn’t “fight like hell, [they’re] not going to have a country anymore.” Such incendiary rhetoric, issued by a speaker who routinely embraced political violence and had inflamed the anger of his supporters leading up to the certification, was likely to incite imminent lawlessness and disorder. The Court, therefore, finds that the second Brandenburg factor has been met. 297. Trump has, throughout this litigation, pointed to instances of Democratic lawmakers and leaders using similarly strong, martial language, such as calling on supporters to “fight” and “fight like hell.” The Court acknowledges the prevalence of 95 martial language in the political arena; indeed, the word “campaign” itself has a military history. See, e.g., Claiborne Hardware Co., 458 U.S. at 928 (“Strong an effective extemporaneous rhetoric cannot be nicely channeled into purely dulcet phrases.”). This argument, however, ignores both the significant history of Trump’s relationship with political violence and the noted escalation in Trump’s rhetoric in the lead up to, and on, January 6, 2021. It further disregards the distinct atmosphere of threats and calls for violence existing around the 2020 election and its legitimacy. When interpreting Trump’s language, the Court must consider not only the content of his speech, but the form and context as well. See Id. at 929 (noting that, if there had been “other evidence” of Evers’ “authorization of wrongful conduct,” the references to “discipline” in his speeches could be used to corroborate that evidence). 298. Consequently, the Court finds that Petitioners have established that Trump engaged in an insurrection on January 6, 2021 through incitement, and that the First Amendment does not protect Trump’s speech.
But what would I know, I'm from another country.
District court judge making a grand political conclusion antithetical to the law isn’t exactly uncommon. See for example the Republican judge in Texas and the abortion in the mail ruling.
It is and remains a joke of an opinion.
The decision is being appealed. Do you predict that the Colorado Supreme Court will find that Trump did not incite an insurrection?
Depends a bit on the make up of panel (a lot of Biden and Obama judges on the tenth — I generally have little respect for Biden and Obama judges though there are exceptions such as Kagan). If it goes to SCOTUS I expect a strong bitch slap.
Would add this might stand on the premise that what you quoted is effectively dicta
Cool. My not-super-confident expectation is that the factual finding of insurrection will not be overturned at any point, though anything could happen in regards to the legal questions around applicability to the presidency. We'll see!
Do you think the issue will be settled as a matter of law? That is, it would be easy to agree with the holding without addressing the issue.
I think that the judicial approach to the issue so far would suggest that the courts will not disqualify Trump but will also avoid saying he did nothing wrong. Judges seem to realize it would cause a massive drama and they aren't game to put themselves at the centre of it. E.g. if you read the part of the Colorado ruling that says the 14th amendment doesn't apply to the Presidency, the judge seems eager to emphasize the weaknesses in her own decision and explicitly says that it is partly based on not wanting to take such a drastic action.
I will be interested to see what happens if and when the issue is addressed by a GOP-aligned judge though. That might give a better indication of where SCOTUS is likely to land on the issue, and we all know it's ending up there.
Given Baude's politics, I suspect the motivation of the original law review article was "Dear Conservative Movement, if you want to yeet Trump and replace him with a more electable candidate, here is how to do it without having to beat him in a primary." At the time he published the article, it had only just become clear that Trump couldn't be beaten in a Republican primary, but non-MAGA Republicans were still assuming that Trump would go down to Biden in a landslide given how badly MAGA candidates did in 2022.
This isn't an area of law where a judge is going to worry about setting a dangerous precedent, so I think the average GOP-aligned judge would disqualify Trump iff he thought doing so would help the GOP. Right now, the core MAGA vote is sufficiently behind Trump that any attempt by the GOPe to change candidate would blow up the party, so Trump is probably safe.
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