What is strange is that there is no word of an interview, let alone a charge, for a purportedly clear crime committed over a month ago. One possible reason is that it would collapse in court. It is so much easier to claim easy prosecutions than to prosecute such made for television charges. I do not fault these experts for speculating about such a case, but many claim that prosecution would be relatively simple. That is just not true.

The problem is free speech. The remarks of Trump last month would not satisfy the test in Brandenburg when the Supreme Court said “advocacy of the use of force or of law violation” is protected unless it is imminent. Trump did not call for use of force. He told supporters to go “peacefully” and to “cheer on” his allies in Congress. He repeated that after violence erupted and told the crowd to respect and obey the police.

Racine showed how disconnected these theories are from case law. He said Trump failed to “calm them down or at least emphasize the peaceful nature of what protests need to be.” Setting aside that he did tell them to protest peacefully, his failure to calm them is not criminal incitement by omission. Trump does face ongoing liability from the same threats which existed before he became president, in the form of banking and business investigations. But the litany of crimes suggested over the last four years passed without charges, yet several experts now argue there are no free speech or legal barriers to prosecute Trump for incitement.