Does the President have a right to free speech? Josh Blackman, a constitutional law professor writing on The Volokh Conspiracy, suggests he certainly does and that his speech on January 6 is a weak reed (as was Nancy Pelosi’s past impeachment folly) on which to gain a conviction in the Senate. (Remember an impeachment vote in the House is basically an indictment with no effect unless the Senate finds guilt after a trial.) …
… Did an anodyne speech by the President, actually incite a riot?
As more evidence appears, it would be hard to sustain that charge. The timeline of the incursion is clear: The Capitol was breached substantially in advance of the conclusion of his speech by people headed there probably before he even spoke. Were all those who entered the Capitol intent on mayhem? It appears most of those who entered the Capitol building engaged in little more than a walkthrough without threatening anyone or damaging any property. Indeed, the Washington Post acknowledges that some of those questioned by law enforcement confirmed the videos — they did not enter without right, the very point law enforcement must prove to make any charges on unlawful entry stick: They were invited in by a Capitol police officer who “shook their hands, gave one a partial hug and told them both that ‘It’s your house now.’” The Post suggests that this conduct was induced by fear of the large crowd.
Maybe. But maybe they recognized that the crowd was largely in support of things like Back the Blue and the people they were protesting about are in the Defund the Police camp. Maybe it’s a feature of the Capitol police force itself, under the control of Congress with the to-be-expected results of political mismanagement and corruption (most of these are patronage jobs, after all).