 As the latest testimony at the January 6th committee hearings makes clear, there's no doubt that former President Donald Trump is morally responsible for the attack on the US Capitol. So there's a big difference between being morally responsible and being criminally liable. And anyone who thinks this is going to end with Trump being prosecuted for incitement and then going to prison desperately needs a reality check. Eyewitness testimony from the January 6th hearings earlier this week does show that Trump wanted his supporters to march to the Capitol. He wrote, though did not send a tweet that read, I will be making a big speech at 10 a.m. on January 6th at the ellipse south of the White House. Please arrive early, massive crowds expected, march to the Capitol after, stop the steal. He had also tweeted on December 19th, big protest in D.C. on January 6th, be there will be wild. Now during his actual speech just before the attack, Trump told his supporters to fight like hell and to march to the Capitol peacefully and patriotically. Shortly thereafter, the protest got out of hand and some members of the crowd smashed the windows of the Capitol, pushed past police, and invaded the building. It's fair to hold Trump responsible for that. If he had not stoked the mob's anger by falsely claiming repeatedly that Democrats were stealing the election from him, there would have been no riot. But do Trump's actions meet the legal definition of incitement to violence? No. Under federal law, incitement is defined as urging or instigating other persons to riot. The landmark 1969 Supreme Court case Brandenburg v. Ohio established that speech must be both likely to incite imminent lawless action and directed at achieving that result. Trump's words did inspire lawless action, but he did not specifically call on the mob to engage in lawless action. He called on his supporters to march to the Capitol, which is First Amendment-protected activity. Now, some media commentators have said that recent testimony from Cassidy Hutchinson, a former White House aide, changes the equation. According to Hutchinson, Trump knew some of the protesters were armed with weapons and didn't seem to care. But from the standpoint of incitement law, that isn't relevant either. People have First Amendment rights, they have Second Amendment rights, and they don't lose those rights just because they're exercising them at the same time. We should be glad that these rights are protected by the Constitution. You may not like Donald Trump, personally, I think he's unfit for office, but we don't want to live in a country where people can be sent to jail because they said the wrong thing. Everybody benefits from a legal regime in which the right to speak, to protest, and to be armed is vigorously protected. So let's not send Trump to jail. Let's just never send him back to the White House.