"The Supreme Court of the United States, over 50 years ago, laid out a clear test to determine whether speech is incitement. Under that test - the Brandenburg v. Ohio test - there are three elements that must be proven, beyond a reasonable doubt... but here, the president's speech called for peaceful protest," said Castor on Friday (February 12).
Neither side has so far announced an intention to call witnesses, leaving senators on track for final arguments and a vote as soon as Saturday.
Trump is the first U.S. president to be impeached twice and the first to face trial after leaving office. His first impeachment trial, which stemmed from his efforts to pressure Ukraine to investigate Biden, ended in an acquittal a year ago in what was then a Republican-controlled Senate.
BRUCE CASTOR: And yet, the House managers, knowing it was not contested at all, chose to spend 14 plus hours showing you pictures of how horrific the attack on the United States Capitol was. They spent no time at all in connecting legally the attack on the Capitol to the 45th president of the United States, which is the only question that needs to be answered, is was Donald Trump responsible for inciting the violence that came to this building on January 6th?
The Supreme Court of the United States over 50 years ago laid out a clear test to determine whether speech is incitement. Under that test, the Brandenburg v. Ohio test, there are three elements that must be proven beyond a reasonable doubt, by a preponderance of the evidence, whatever the Senate considers, I suggest, beyond a reasonable doubt. First, the speech in question must explicitly or implicitly encourage the use of violence or lawless action.
But here, the president's speech called for peaceful protests. Second, the speaker must intend that his speech will result in the use of violence or lawless action. Finally, the third element under the Brandenburg test is the imminent use of violence-- imminent use of violence. In other words, right then, the imminent use of violence or lawless action must be that the likely result of the speech-- the likely result of the speech.
Well, that argument is completely eviscerated by the fact that the violence was preplanned, as confirmed by the FBI, Department of Justice, and even the House managers, not the result of the speech at all.