Trump Walks Legal Tightrope as Investigations of Former President Intensify

Just over a year after the deadly riot at the U.S. Capitol left five people dead and many Americans questioning the future of democracy, former President Donald Trump took the podium in Conroe, Texas on January 29 to make a fierce call to his followers to get ready for "the biggest protest we have ever had" on his behalf.

A crowd estimated at 10,000 by The Associated Press gathered near the White House on Jan. 6, 2021 to hear an impassioned speech from the former president urging them not to accept the results of the 2020 presidential election and to march on the Capitol in protest.

Last month, thousands of Trump supporters turned out in Texas to hear the former president vehemently reiterate the claims from that speech, while maintaining that he had committed no wrong.

Despite his continual denials of responsibility, Trump's recent statements could add to his already sizable legal troubles, experts say.

Active investigations into Trump's efforts to overturn the 2020 election results and potential illegal practices in his real estate empire are advancing, particularly in Washington, D.C., New York and Georgia, three locations Trump explicitly called out at his Jan. 29 rally.

"He may have shot himself in the foot," Dennis Aftergut, a former federal prosecutor who is of counsel to Lawyers Defending American Democracy, told The Guardian.

Trump also hinted at his intentions to pardon the Capitol rioters if he were to win the 2024 presidential election.

These words, taken into consideration alongside those uttered on Jan. 6, could feasibly establish a pattern of Trump trying to rouse people to imminent lawless action, Erica Goldberg, a University of Dayton law professor, told Newsweek.

Speech intended to and likely to provoke imminent, unlawful action is incitement, a category of speech unprotected by the First Amendment, she said.

"Incitement is purposely a very high bar," Goldberg said. "We want to separate protected core First Amendment advocacy from what we would consider unprotected incitement. We really try to be protective of First Amendment rights."

The United States has what is widely viewed as the broadest protection of freedom of speech in the world. In recent decades, the U.S. Supreme Court has held that a person can say some very offensive words as long as they are not directed at or threatening harm against any particular individual or group.

This view of protected speech stems from a 1942 Supreme Court decision that established the concept of "fighting words," which allows the government to prosecute individuals whose speech is likely to to incite immediate violence or retaliation by those who hear it.

"I'm hesitant to be a proponent of shutting someone down, especially a political figure, because I think that does more to rile people up than the statements themselves," Thaddeus Hoffmeister, a University of Dayton law professor, told Newsweek.

Hoffmeister added that courts generally want to avoid being the arbiter of conduct of elected officials, especially when it's about political activity.

"Some would say, 'Well, he's just advocating,'" Hoffmeister said.

Deciding what is free speech and what is incitement to violence is difficult, said Chris Rasmussen, professor of history at Fairleigh Dickinson University.

"Drawing that boundary between speech and action, incitement to action, is a difficult task," Rasmussen told Newsweek.

The former president has a long history of successfully pushing the envelope, he said.

"Trump has a kind of talent for knowing how to go right up to the line," Rasmussen said. "He seems to somehow know where it is and how to stay just shy of it, maintaining plausible deniability."

Trump continues to walk that fine line as investigations into the former president intensify. But Goldberg noted that while the bar for incitement is high, it can be met.

"I could see this [Jan. 6 riot] going to a jury," Goldberg said. "How a jury is going to rule is a totally separate thing, but even going to jury would be very significant, because the court would be saying, 'This might not be protected speech as a matter of law.'"

The comments made by former President Donald Trump on Jan. 29 could serve to exacerbate his legal troubles.

"Criminal intent can be hard to prove, but when a potential defendant says something easily seen as intimidating or threatening to those investigating the case it becomes easier," Aftergut told The Guardian.

Legal experts say the comments made by the former president likely reveal that Trump is feeling a heightened level of legal vulnerability, driven by the advancing investigations in Atlanta, Washington and New York, The Guardian reported.

But that vulnerability is more likely to be civil rather than criminal.

"He's not helping himself. He's adding fuel to the fire," Hoffmeister said. "But I think if there's a potential for liability for the [former] president, it's more on the civil side than the criminal side."

"There's a number of people, especially those who lost loved ones during Jan. 6, who are bringing civil lawsuits against the [former] president," Hoffmeister added. "I think you'll see traction there before you'll see it on the criminal side."

The recent rally in which Trump continued to defend the events of Jan. 6 is evidence of the former president's continuing ability to stand history on its head, Rasmussen said.

How the investigations play out remains to be seen, but legal experts agree that the words uttered by Trump may help to establish grounds for bringing the former president before a jury.

"We want to be really careful about allowing enough speech to come through and not criminalizing it," Goldberg said. "But at the same time, we cannot have a criminal justice system that's corrupted by fears and intimidations."

Trump Supporters Conroe Texas 01.29.22
A couple listens to former President Donald Trump during the 'Save America' rally at the Montgomery County Fairgrounds on January 29, 2022 in Conroe, Texas. Former President Donald Trump spoke at the rally, making it his first Texas MAGA rally since 2019. Photo by Brandon Bell/Getty Images

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