Hutchinson's testimony changed our minds about prosecuting Trump

But intent by itself is not enough; as both a legal and a prudential matter, the case for prosecuting political speech is much stronger when that speech is accompanied by additional actions that facilitate lawlessness and violence, just as the crime of conspiracy requires an overt act to avoid the overcriminalization of loose talk.

And it is here that Hutchinson’s testimony about Trump’s angry demand to remove the magnetometers is critical, because that order, were it to have been followed, would have brought the most dangerous members of that crowd closer to him and arguably would have made them more likely to be moved by his inflammatory rhetoric. Even if those armed supporters could hear him from a distance when they were staying back from the “mags,” Trump clearly wanted a larger and a more fired-up rally. A larger, more packed crowd that could hear at higher volume, that could see Trump better, and that was part of a denser mob, with more of his most hard-core followers with weapons and body armor, would be more likely to march and fight physically, not just metaphorically. Trump would have been aware of this likelihood, and he tried materially to increase this likelihood.

In other words, Trump’s order to “take the fucking mags away,” whether or not the Secret Service obeyed it, was not constitutionally protected political speech but, rather, an overt act, sandwiched between sentences reflecting awareness and intent, that would have made the threat of lawflessness far more “imminent” (in the language of Brandenburg). Trump’s actions transformed his words “Fight like hell” from a political metaphor to a consciously literal and imminent danger.