Blumenthal Asks House Managers to Respond to Trump's Brandenburg Defense – Deemed "Legally Frivolous" By Constitutional Experts

[WASHINGTON, D.C.] – During today’s session of the impeachment trial of  former President Donald Trump, U.S. Senator Richard Blumenthal (D-CT) submitted the following question to the House Managers:

Former President Trump and his attorneys have cited the Brandenburg v. Ohio case in support of their argument that the First Amendment protects Trump. Did the Brandenburg case prohibit holding public officials accountable, through the impeachment process, for the incitement of violence?

Former President Trump’s legal team has attempted to use the Supreme Court case Brandenburg v. Ohio to support a First Amendment-based defense of former President Trump’s conduct before, during, and after the violent attack on the Capitol on January 6, 2020. The Brandenburg ruling established First Amendment protection for “advocacy of the use of force” or of illegal acts “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to produce such action.”

In his response, House Manager and U.S. Representative Jamie Raskin’s (D-MD), cited a letter signed by 140 law professors deeming the Trump team’s First Amendment defense “legally frivolous.” Raskin drew a contrast between the Klansmen at the center of the Brandenburg case and Trump, noting that “the Supreme Court said they weren’t inciting imminent lawless action because you couldn’t have a mob, for example, break out the way that this mob broke out and took over the Capitol of the United States of America.”

Raskin went on to draw a more direct comparison saying, “assume that he were the Chief of Police of the town who went down to that rally and started calling for, you know, a rally at the City Hall, and then nurturing that mob, cultivating that mob, pulling them in over a period of weeks and days, naming the date and the time and the place, riling them up beforehand and saying, ‘be my guest. Go and stop the steal.’”

During this segment of the trial, Senate was authorized to take up to four hours to ask questions of both the House Managers and the Trump legal defense team, alternating between Democrats and Republicans. Questions were required to be submitted in writing to the presiding officer, U.S. Senator Patrick Leahy (D-CT).

The full text of Raskin’s response to Blumenthal’s question is below.

Thank you, Mr. President, Senators.

So, let’s start with the letter of more than 140 constitutional law professors, which I think they described as “partisan” in nature. That’s a slur on the law professors and I hope that they would withdraw that. There are very conservative luminaries on that list, including the cofounder of the Federalist Society, Ronald Reagan's former Solicitor General Charles Fried, as well as prominent law professors across the intellectual, ideological and jurisprudential spectrum. And they all called their First Amendment arguments frivolous, which they are.

Now, they retreated to Brandenburg v. Ohio. They want their client to be treated like a guy at the mob, I think they said, a guy in the crowd who yells something out. Even on that standard this group of law professors said there is a very strong argument that he's guilty even under the strict Brandenburg standard. Why? Because he incited imminent lawless action, and he intended to do it, and it was likely to cause it. How do we know it was likely to cause it? It did cause it. They overran the capitol. Right?

So even if you want to hold the President of the United States of America to that minimal standard and forget about his constitutional oath of office, as I said before that would be a dereliction of legislative duty on our part if we said: all we're going to do is treat the President of the United States like one of the people he summoned to Washington to commit insurrection against us. The president swore to preserve, protect and defend the constitution of the United States. That's against all comers, domestic or foreign, that’s what ours says, right? Did he do that? No. On the contrary.

He’s like the Fire Chief. He doesn't just say, “go ahead, shout fire in a crowded theater,” he summons the mob and sends the mob to go burn the theater down and when people start madly calling him and they start ringing the alarm bells, he watches it on TV and he takes his sweet time for several hours. He turns up the heat on the Deputy Fire Chief who he's mad at because he's not making it possible for him to pursue his political objectives. And then, when we say, “we don't want you to be fire chief ever again,” he starts crying about the First Amendment.

Brandenburg was a case about a bunch of Klansmen who assembled in a field, and they weren’t near anybody such that they could actually do violent damage to people, but they said repulsive, racist things. But the Supreme Court said they weren’t inciting imminent lawless action because you couldn’t have a mob, for example, break out the way that this mob broke out and took over the Capitol of the United States of America.

And by the way, don't compare him to one of those Klansmen in the field asserting their First Amendment rights. Assume that he were the Chief of Police of the town who went down to that rally and started calling for, you know, a rally at the City Hall, and then nurturing that mob, cultivating that mob, pulling them in over a period of weeks and days, naming the date and the time and the place, riling them up beforehand and saying, “be my guest. Go and stop the steal.” Come on.

Back to Tom Paine. Use your common sense. Use your common sense. That’s the standard of proof we want.

They’re already treating their client like he’s a criminal defendant. They are talking about beyond a reasonable doubt – that they think we're making a criminal case here. My friends, the former president is not going to spend one hour or one minute in jail.

This is about protecting our republic and articulating and defining the standards of presidential conduct. If you want this to be a standard for totally appropriate presidential conduct going forward, be my guest, but we’re headed for a very different kind of country at that point.

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