Donald Trump’s protesters’ comments raise important issues

Former President Donald Trump on Friday reiterated his call for pro-Palestinian protesters who gathered in Washington DC this week to face prison sentences for their actions.

At the same time, Trump called for the release of those charged in connection with the January 6, 2021, riots at the US Capitol.

Several politicians have condemned the protests sparked by Israeli Prime Minister Benjamin Netanyahu’s speech to a joint session of Congress on Wednesday. Some of the thousands of protesters were seen vandalizing buildings and replacing American flags with the Palestinian flag. Others were seen on video setting fire to an American flag wrapped around an image of Netanyahu.

Trump appeared on Fox News’ Fox & Friends a day after the protests and called for those who burned the American flag to face up to one year in prison. He reiterated the position in a post on his Truth Social account on Friday afternoon addressed to FBI Director Christopher Wray, tagged at the end: “When will (Wednesday) Vandals and Flag Burners be put in jail?”

Trump also asked in his message when “the hunted J6 (January 6) hostages” would be released from prison. Supporters of the former president have repeatedly referred to those convicted for their actions on January 6 as “political prisoners,” and the former president has vowed to release all jailed Capitol rioters on his first day back in office if re-elected.

The conflicting positions pose legal hurdles for the former president. While those jailed in connection with Jan. 6 were convicted of charges ranging from assault to entering or remaining in a restricted federal building, burning an American flag is protected by the First Amendment, according to the U.S. Supreme Court’s 1989 ruling in Texas vs. Johnson.

“The Supreme Court has ruled that flag burning is protected speech under the First Amendment,” Dave Aronberg, legal analyst and attorney, told Newsweek.That would have to change before someone could be arrested for that.”

Aronberg added, however, that the “vandalism of the anti-Semitic protesters,” referring to the pro-Palestinian protesters, “was clearly illegal and punishable.”

Following the Capitol riots, several congressional offices, including that of then-House Speaker Nancy Pelosi, were vandalized and damaged. The Justice Department said in January that an estimated 71 suspects have been charged with destruction of government property in connection with the riots. About 56 suspects also face charges of theft of government property.

Former U.S. Attorney Barbara McQuade told Newsweek on Friday, “There’s a lot going on in this post. Suspects who committed crimes on January 6 have been charged with violating laws and given fair trials. Some have been held by judges pending trial based on a finding of danger to the community or flight risk. Other suspects from January 6 have been convicted by juries or pleaded guilty and sentenced to prison by judges.

“If pro-Palestinian protesters are found to have committed violence or property damage, I expect prosecutors to charge them with crimes. But burning their own American flag, as abhorrent as it may be to many of us, is not a crime and is protected by the First Amendment.”

Trump’s calls to ban flag burning were also criticized in an op-ed Friday by Sarah McLaughlin, a senior scholar at the Foundation for Individuals Rights and Express. McLaughlin pointed out that while burning the American flag “can be a deeply unpopular form of political expression,” it is “protected.”

Trump told the presenters of Fox & Friends on Thursday that “people will say…it’s unconstitutional” to charge those who burn or deface the American flag.

“Those are stupid people, those are stupid people who say that,” Trump said. “We need to work in Congress to get a one-year prison sentence. If they’re allowed to stomp on the flag and put lighter fluid on the flag and set it on fire, if you’re allowed to do that, you’re going to get a year in prison and you’ll never see it again.”

Newsweek has contacted Trump’s press team for further comment.

McLaughlin argued against this point in her essay, published by MSNBC, writing that banning flag burning “is actually a sign of the wisdom of our First Amendment, not its stupidity.”

“It demonstrates confidence that critics of the United States and its symbols can change their minds through persuasion, a hallmark of a free and healthy society, rather than through coercion,” she wrote.

Questions have been raised about the charges against some of the Capitol rioters after the Supreme Court ruled in June that the federal obstruction law, which was used against several suspects in the Jan. 6 attack, can be invoked only if investigators have evidence that a suspect attempted to tamper with or destroy documents. Trump has suggested the ruling means jailed Capitol rioters “should be freed soon.”

However, U.S. Attorney General Merrick Garland said the Supreme Court ruling would not have a major impact on cases involving the more than 1,400 defendants charged in connection with the Capitol riots. In a statement, he noted: “There are no cases in which the Department has charged a January 6 defendant solely with” a federal obstruction offense.