President Donald Trump may have gotten more than he bargained for Friday, when he posted three tweets, just sixteen words in total, that stunned and infuriated the nation and have legal experts weighing in on just how much trouble he could be in.
One, a former U.S. Dept. of Justice official, suggests possibly a lot.
But first, the tweets:
The average Trump supporter might say, “So?” Or, as Trump has often defended his actions, he has a First Amendment right to say what he wants.
Both are wrong, according to Mary McCord, a former Acting Assistant Attorney General for National Security at the U.S. Department of Justice, and former Principal Deputy Assistant Attorney General for the National Security Division, according to her bio at Georgetown Law, where she is a Visiting Professor of Law at Georgetown University Law Center.
If all that’s not enough, McCord currently serves as the Legal Director at the Institute for Constitutional Advocacy and Protection (ICAP).
In other words, she knows what she’s talking about. And what she’s saying, in a just-published Washington Post op-ed, is Trump’s actions meet the definition of inciting insurrection, and inciting insurrection is “illegal.”
“President Trump incited insurrection Friday against the duly elected governors of the states of Michigan, Minnesota and Virginia,” McCord begins. “Just a day after issuing guidance for re-opening America that clearly deferred decision-making to state officials — as it must under our Constitutional order — the president undercut his own guidance by calling for criminal acts against the governors for not opening fast enough.”
The op-ed’s subtitle notes: “Federal law bans advocating the overthrow of government.”
There’s a lot more, but she sets up her argument well.
“‘Liberate’ — particularly when it’s declared by the chief executive of our republic — isn’t some sort of cheeky throwaway,” McCord continues. “Its definition is ‘to set at liberty,’ specifically ‘to free (something, such as a country) from domination by a foreign power.’ We historically associate it with the armed defeat of hostile forces during war, such as the liberation of Western Europe from Nazi Germany’s control during World War II. Just over a year ago, Trump himself announced that ‘the United States has liberated all ISIS-controlled territory in Syria and Iraq.'”
In that context, it’s not at all unreasonable to consider Trump’s tweets about “liberation” as at least tacit encouragement to citizens to take up arms against duly elected state officials of the party opposite his own, in response to sometimes unpopular but legally issued stay-at-home orders.
McCord also says – and this is important for the naysaying MAGA KAGs in the back, “we can’t write these tweets off as just hyperbole or political banter.”
And that’s why these tweets aren’t protected free speech. Although generally advocating for the use of force or violation of law is protected (as hard to conceive as that may be when the statements are made by someone in a position of public trust, like the president of the United States), the Supreme Court has previously articulated that where such advocacy is “inciting or producing imminent lawless action and is likely to incite or produce such action,” it loses its First Amendment protection.
Read McCord’s entire op-ed here.
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