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Could you give me an example of what ELSE he would have had to do in order to be subject to prosecution?

Most directly, he'd have to have included in his speech a direct call for the audience to break into the capital and/or to use violence (or the threat of violence) against Congress. That would support an indictment for incitement, and perhaps conspiracy to commit. Because there's such a widely established tradition of using martial metaphors to describe perfectly legal political action (describing political contests using terms like "fights," "battles," or even "wars"), prosecutors cannot prove that the use of such terms were intended by the speaker, or understood by the audience, as calls for physical violence rather than political action.

Trump also could have taken actions outside of the speech itself that could give rise to prosecution, of course. For example, if he had met with Proud Boy leaders and specifically discussed a plan to break into the capitol and threaten Congresscritters, that would obviously be a criminal offense. But so far, there's no indication that he did anything like.

Albaby
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