“there is a big difference between reckless rhetoric, which is protected by the First Amendment, and the criminal conspiracy described in lawsuits filed by Rep. Eric Swalwell (D‒Calif.), other House Democrats, and two Capitol Police officers. All three complaints allege that Trump violated the Ku Klux Klan Act of 1871 by conspiring to use threats, force, and intimidation to stop government officials from carrying out their duties.
To prove that claim, the plaintiffs must do more than show that Trump ginned up his supporters’ outrage with false election fraud claims, or even that he did so in circumstances where he should have known violence was likely. They have to show that the Capitol riot was the culmination of a plan to violently disrupt the ratification of Joe Biden’s victory, a scheme in which Trump himself intentionally participated.
Capitol Police officers James Blassingame and Sidney Hemby also claim that Trump violated a provision of the D.C. Code that “makes it a criminal offense to willfully incite or urge other persons to engage in a riot.” In addition to the requirement that the offense be committed “willfully,” prosecution for incitement is constrained by the First Amendment.”