> Do you realize that anyone can claim “incitement” of violence since it’s completely subjective and therefore probably very dangerous thing to be using as a way to determine “guilt”.
That's false. The standards for incitement according to the SCOTUS are defined in the Brandenburg Test and are _famously_ narrow. They include a subjective test of the speaker's intent, and an objective test.
- Subjective: Speech is "directed to inciting or producing imminent lawless action" (this means, was the speaker intending to produce imminent lawless action).
- Objective: Speech is "likely to incite or produce such action"
In an incitement case here, the objective test is absolutely easy. The crowd broken into the halls of the Capitol, violently disrupted a session of Congress, and killed a police officer. Any lawyer would have no problem arguing in court that the speech that morning was "likely" to incite imminent lawless action.
The harder test is the subjective test of the speaker's intent. Here, we need to show that Donald Trump intended to incite imminent lawless action. That's typically a very hard test, because we can't read minds. But we can use circumstantial† evidence to piece together enough of a picture to allow a jury to convict.
† circumstantial evidence is used all the time to determine intent for crimes in courtrooms all over the United States, and is completely valid evidence. Don't raise "but that's circumstantial!" as a defense, because circumstantial evidence is completely valid.