The YouTuber LegalEagle handled this well:
- It's extremely unlikely that Pres. Trump would be able to actually be convicted of criminal charges of inspiring a riot, the actual law. His political speech is protected and there's just no way that a sane court would create a new precedent of prosecuting people or vague speech.
-[i]They can basically impea ...[text shortened]... old any of this "inciting a riot" business as a criminal charge that will stick and a new precedent.
Len Niehoff, professor at the University of Michigan Law School, disagrees and argues that what Trump did would be punishable under the Brandenburg
test already mentioned:
"The Court held that speech like Brandenburg’s could be criminally punished only where “such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
This standard has lots of requirements. The speech must be directed toward producing action. It must be likely to result in such action. The action must be unlawful. And the action advocated for must be imminent."
"Was the speech directed toward action? And was the action to be performed imminently? Yes, and yes. Trump told his followers to march to the Capitol after his speech.
Was the advocated action unlawful? This is a closer question.
It is not unlawful to march to the Capitol. But what did Trump want his followers to do once they got there?
Trump said nothing to distance himself from the earlier comments of Donald, Jr., who said “We’re coming for you,” or Rudy Giuliani, who called for “trial by combat.” Instead, Trump built on the agitation they had fomented.
He made repeated claims that the election had been stolen from them. He declared that those gathered were “not going to take it any longer.” He exclaimed “we will never give up, we will never concede … we will stop the steal.” He instructed the audience that they had to “show strength” and “be strong.” And he told them that Vice President Pence could change the outcome of the election if he were only persuaded to do so.
The unmistakable message was that people should go to the Capitol and disrupt the proceedings in an attempt to keep Trump in office. And that is unlawful conduct on several fronts.
That leaves us with just one final question. Were the events that followed the likely result?
No. They were the inevitable result."