I'm Brian Lehrer. This is my daily politics podcast from WNYC Studios. It's Wednesday, January 13th.

With me now on some of the legal aspects of impeachment, as well as the investigation and prosecution of some of the rioters

themselves, is Cardoza Law School Professor Jessica Roth. She is co-director of the Jacob Burns

Center for Ethics in the Practice of Law, and previously she was a federal prosecutor in the U.S.

Attorney's Office for the Southern District of New York here in Manhattan

for seven years. Professor Roth, thank you so much for joining us on this momentous day.

It's my pleasure to join you. Thank you. So people are saying if Trump is not convicted in the

Senate of this charge of incitement to insurrection, he could potentially be charged with it in court

criminally. Could you describe as a law professor what incitement to insurrection or to riot

is in legal terms and what a prosecutor would need to prove to a jury to get a conviction on that?

So I think the most important thing to bear in mind is to pass First Amendment scrutiny,

a prosecutor would have to prove that the defendant, whether it's the President of the United

States or anyone else, engaged in speech and conduct that was both directed to inciting or producing imminent lawless action,

and also was in fact likely to incite or produce such action. And that's pursuant to Supreme

Court precedent. And so that's thinking about both the intent of the speaker and also the sort of objective reality, the

context in terms of was it actually likely given the words and the overall context to actually

incite or produce imminent lawless action. So that imminency is what's really quite critical. So let me play a

couple of clips that in this theoretical trial could become pieces of evidence and get your take

as to whether they rise to that standard that you just described of willful incitement to riot.

I want to go back to September 23rd. So this is during the campaign. This is just a seven-second clip. So listeners, pay attention. This will go by

in a flash with a quick reporter's question and a quick response from Trump.

Will you commit to making sure that there is a peaceful transferal of power after the election?

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