Channeling Charles Manson

Trump’s All-Too-Familiar Defense Strategy

In a recent interview on Philadelphia’s KYW NewsRadio, newly hired Trump impeachment lawyer Bruce Castor previewed the following defense for his client’s upcoming Senate trial: “The president deplores the violence at the Capitol, and those people should be punished, aggressively, as I would have done as if I was the DA and they did it at the Montgomery County courthouse. But just because somebody gave a speech and people got excited, it doesn’t mean it’s the speechmaker’s fault. It’s the people who got excited and did what they know is wrong.”

Citing legal precedent from the Supreme Court’s 1969 ruling in Brandenburg v. Ohio (a case in which the limits of protected first amendment speech took centerstage), Castor maintains that the former president’s rally remarks on January 6th do not constitute crimes under the so-called Brandenburg test: “I analyzed that at length, and that isn’t even close to met. I don’t believe there’s a chance in the world they’re going to be able to demonstrate he committed those crimes, or even anything approaching them.”

But even a cursory overview of the statute itself reveals the rather dubious and apples-to-oranges nature of Mr. Castor’s comparison. According to the Legal Information Institute (LII) at Cornell Law School: “the test determined that…