Donald Trump's Protester Comments Raise Key Issues

Former President Donald Trump repeated calls on Friday for the pro-Palestinian protesters who gathered in Washington, D.C., this week to face jail time for their actions.

In the same breath, however, Trump also called for those charged in connection to the riots at the U.S. Capitol on January 6, 2021, to be released from prison.

Several politicians have condemned the protests sparked by Israel Prime Minister Benjamin Netanyahu‘s address to a joint session of Congress on Wednesday. Some protesters out of the thousands who demonstrated were seen vandalizing structures and replacing American flags with the Palestinian flag. Others were seen on video setting fire to a U.S. flag that was wrapped around an effigy of Netanyahu.

Trump appeared on Fox News‘ Fox & Friends a day following the protests and called for those who burned the American flag to be handed one-year jail sentences. He repeated the position in a post to his Truth Social account Friday afternoon that was directed at FBI Director Christopher Wray, tagging at the end of it, “When are [Wednesday’s] Vandals and Flag Burners going to be put in prison?”

Trump also asked in his post when “the hunted down J6 [January 6] Hostages” were going to be released from prison. Supporters of the former president have repeatedly referred to those convicted of their actions on January 6 as “political prisoners,” and the former president has promised to release any imprisoned Capitol rioters on his first day back in office if he is reelected.

The contradicting viewpoints have legal hurdles for the former president. While those serving jail time in connection to January 6 were convicted of charges ranging from assault to entering or remaining in a restricted federal building, the act of burning an American flag is protected under the First Amendment, per the U.S. Supreme Court‘s 1989 ruling in Texas v. Johnson.

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

Aronberg added, however, that the “vandalism from the anti-Semitic protesters”, referring to the pro-Palestinian protesters, was “clearly illegal and could be punished.”

Following the riots at the Capitol, several congressional offices, including the one of then-House Speaker Nancy Pelosi, were left vandalized and damaged. The DOJ said in January that an estimated 71 defendants have been charged with destruction of government property in connection to the riots. Around 56 defendants also face charges of theft of government property.

Former U.S. Prosecutor Barbara McQuade told Newsweek on Friday, “There is a lot going on in this post. Defendants who committed crimes on Jan 6 have been charged for violating laws and have been provided due process. Some have been ordered detained by judges while they await trial, based on a finding of danger to the community or risk of flight. Other Jan 6 defendants have been convicted by juries or guilty pleas, and sentenced to prison by judges.

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

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

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

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

Newsweek has reached out to Trump’s press team for further comment.

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

“It suggests a confidence that critics of the U.S. and its symbols can be moved to change their minds through persuasion, a hallmark of a free and healthy society, rather than force,” she wrote.

There have been questions raised over the charges issued against some Capitol rioters after the Supreme Court ruled in June that the federal obstruction statute—which was used against several January 6 defendants—may only be used if investigators have proof that a defendant tried to tamper with or destroy documents. Trump has suggested that the ruling means that imprisoned Capitol rioters “should be out soon.”

However, U.S. Attorney General Merrick Garland has said that cases involving the more than 1,400 defendants charged in connection to the Capitol riots were not be greatly affected by the High Court’s ruling, however, noting in a statement, “There are no cases in which the Department charged a January 6 defendant only with” a federal obstruction offense.