Here’s Why Trump’s Fighting Words Are a High Crime
The First Amendment does not protect months of reckless, incendiary speech that foreseeably led to violence.
“The First Amendment must be properly applied here,” impeachment defense lawyer Michael van der Veen insisted Friday morning, saying that Trump’s “fight like hell” talk on Jan. 6 was standard political rhetoric, protected by the Constitution.
This argument is legally wrong. And the reason is a cluster of concepts that recur in criminal and civil law: foreseeability, recklessness, and negligence.
Together, these terms stand for the common-sense principle that if you create the conditions for something to inevitably occur, you are responsible for it. If you put a bunch of oil-soaked rags next to an open flame, you are responsible for the fire that results, even if you didn’t deliberately set it. If you get drunk and drive, you are responsible for the death you caused, and will likely be charged with murder, rather than simply manslaughter. The law recognizes this all the time.