Even if the Brandenburg test were applied, Trump would flunk.
First, Trump’s speech encouraged the use of violence or lawless action. Trump’s lawyers have absurdly argued that his Jan. 6 remarks did not have “anything to do with the action at the Capitol.” In fact, there can be no doubt that Trump was exhorting the crowd to engage in acts of lawlessness and violence. He ignited the supporters before him by repeating baseless claims, rejected by dozens of courts since Election Day, that he had “won” the election “in a landslide.” He insisted, “We won’t have a country” if we don’t “fight like hell,” adding that “we will not let them silence your voices. We’re not going to let it happen.”
The crowd in return made clear they received his message as they chanted “Fight for Trump” throughout Trump’s remarks. Then, as the attack on the Capitol was already underway, and aides pleaded with Trump to call on the mob to stand down, he at first resisted any action to rein in the violence.
Instead, as he watched it unfold, aides described him as pleased, delighted and excited.