Is The President Guilty Of Incitement?
As I’m writing this, Congress is once again preparing to introduce an Article (or Articles) of Impeachment against President Donald Trump. Reports suggest the focus of these articles will center on a charge of inciting an insurrection against the government of the United States. That’s an extremely serious charge to bring against anyone, much less a sitting President. It amounts to charging someone with sedition, or attempting to overthrow the federal government.
Let’s get one thing out of the way, before we get into this. The only place where anyone who thinks the events of last Wednesday were justified are on the fringes of society. It was a despicable act by erstwhile citizens of this country, one that has rightly been roundly condemned. Those people who participated in the invasion of the US Capitol are not patriots. They were not rioting. That was an assault on the United States and on the Constitution. The people who engaged and led that attempted insurrection should be tried as terrorists – because terrorism is the use of force in an attempt to frighten a government into conceding its authority.
The question is, is the President one of those who incited those actions? There can be little doubt his rhetoric is inflammatory. It is one of the things his most adoring supporters like about most about him. The President has in the past admitted inflammatory rhetoric is a tool he admires and uses, once writing
I love pitting people against each other. My whole life is based on that. It brings out the best in people and the worst in people.Donald Trump, The Art of the Deal
This long-stated acknowledgement that he strives to create division and inflame passions would preclude any possibility of the President or his lawyers from trying to slough off the incitement charge based on the idea he wasn’t trying to create division or inflame passions among his supporters. Of course he was, we all know he was. I suspect that while nobody ever wants to admit they were manipulated, at the end of the day most of those in that crowd will admit they were. The rest of us understand what he was doing with his rhetoric over the last year, by saying things that amounted to charging that the United States is incapable of running a fair and honest election. But the question remains, does this amount to incitement?
There is a reason Congress has been careful in how it crafted the laws around incitement and the requirements that speech or actions must have before an incitement charge can be prosecuted. We cherish the First Amendment’s protections of political speech, even speech that seeks to offend as its principle aim. We’ve long accepted that restricting speech should only happen under the most extreme circumstances. Incitement – calling on others to cause harm – is one of those few exceptions.
Legally, incitement is defined as,
As used in this chapter, the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts.18 US Code 2102, Paragraph b
What we need to focus on are the speech and conduct that are precluded as incitement. They amount to speech that promotes an idea or belief, unless that speech directly calls for violence. You can examine every statement made by the President relating to the January 6 “Stop the Steal” rally prior to the event. While you will find things that may be distasteful and inflammatory, there is no direct call to violence. If you listen to his hour long speech at that rally, while he does call on his supporters to march to the Capitol Building, there is nothing in the speech that directly calls on them to engage in the conduct they did once they got there. You might infer that he wanted them to, but the reason inferences are not allowed as evidence is they are colored by your point-of-view. Additionally, judging an inference requires not your interpretation of the speech involved, but attempting to reconstruct someone else’s interpretation.
If the clearly stated legal bar for determining incitement isn’t enough for you, there is a boatload of case law that upholds this standard. Most important is Brandenburg v. Ohio, in which the Supreme Court held
Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.395 US 444, Per Curiam opinion
Once again, there is nothing in the President’s speech that is “directed to inciting or producing imminent lawless action.”
My personal opinion is that the President’s actions (and more importantly, inactions) after the violence started are reprehensible. Based on those, he would resign – or at least issue a mea culpa – if he had any honor. But based on the law, he is not guilty of “incitement of insurrection.” Once again, Congress has overreached and i̵s̵ ̵p̵r̵e̵p̵a̵r̵i̵n̵g̵ charged the President with a crime they cannot prove. If Congress was serious about attempting another impeachment, they could simply charge him with “Conduct Unbecoming A Federal Officer,” which is certainly a charge that can be proved. But this charge is likely to fail in the Senate for more than political reasons. Legally, it’s a false charge and Senators would more than understand that allowing this to proceed would damage First Amendment rights for all of us.
(note: as I was finishing this up, Congress did introduce a single Article of Impeachment, for “incitement of insurrection”)
The Media Is Wrong About Richard Spencer
Over the past few days, mainstream media outlets have had their tongues wagging over the firing of the former Secretary of the Navy, Richard Spencer. “Oh, NO!” they all cry. “Trump has gone too far this time. How dare he interfere with the good order of the military!”
This is almost a repeat of the lionization of Lt. Col. Alexander Vindman, the Army officer who testified that Trump didn’t break any laws but pushed a policy he thoroughly disagreed with. That, to the Lords of Daytime Talk and Morning Joe, is an impeachable offense in and of itself. Why, how dare anyone impugn the opinion of an Army lieutenant colonel!
The media is flabbergasted that rank-and-file military and veterans support the President over these two paragons of military virtue. (Yes, that is a facetious comment, before you ask). The reason is simple and goes to something else the media and their liberal cohort cannot seem to fathom. Every person in the military, regardless of branch or the era in which they served, understands the President is the Commander in Chief. That’s not just an honorary title: his orders are the absolute highest authority. Unless he gives an order that is blatantly illegal, it is the duty of everyone in the military to carry out those orders. Period. No exceptions, no “but why,” no nothing except salute and carry on. If you’re of high enough rank and disagree on a policy basis, then you resign your commission and return to civilian life. If you aren’t of high enough rank, you can voice your disagreement to your superior officer but you still carry out the order.
The media cannot fathom this basic fact. For all their lavish praise on Spencer, the simple fact is he disregarded a direct order from both the Secretary of Defense and the President and was planning on moving ahead to remove a decorated SEAL from their ranks because the government couldn’t successfully court martial him on drummed up charges. It was a fit of pique that led to his decision to ignore the order to stand down, a thought that the President didn’t know what he was doing, an inability to comprehend that the President is, regardless of prior service, the Commander in Chief. For all his blather about how the President not understanding good order within the ranks, the reality is Spencer is the one who ignored the first principle of good order: that no matter how noxious the order may be personally, if it is a legal order from a superior, you obey.
This inability of the media to accept this fact stems from one place – their unwillingness to acknowledge that Donald J. Trump is the rightful President of the United States. Had these same military personnel acted the same way during the previous administration, the same media talkers that profess their undying admiration for Richard Spencer and Alexander Vindman would be demanding they be sent to Ft. Leavenworth for the next 20 years. So don’t be fooled by the media cabal, America. Just as with the Russia hoax and every other nonsense “scandal” that’s come along over the past three years, they are willing to condone all sorts of legally questionable behavior provided it might damage the President.
In Defense of Justin Amash
In case you were off enjoying yourself this past weekend (or dodging tornadoes in Kansas), this tweet from Rep. Justin Amash (R-MI) set the political world on fire:
You can read the full thread on Twitter and I suggest you do just that, rather than listen to the dozens of talking heads that populate the airwaves. They have quickly assumed their usual fighting stances. For the Trumpsters, Amash is a traitor to the cause, giving cover to the most corrupt deep state coup in history. To the Resistance, Amash is a hero, speaking the truth about the most corrupt administration since King George III.
Further down in his thread, Amash hints at this response to his conclusions:
Indeed, when you read the full thread, it doesn’t take a great deal of imagination to understand why Amash reached the conclusions he did. To his reasoning, Barr is covering for presidential misdeeds out of partisan fervor. Whether those misdeeds are, in fact, “high crimes and misdemeanors” is not the matter for debate. Rather, it is that they reveal a pattern of “otherwise dishonorable conduct.”
Anyone who has paid attention to Justin Amash’s career shouldn’t be surprised by any of this. He has always been the most reluctant of Republicans; a man who hoped to bring the GOP closer to his libertarian inclinations than the conservative bent of the party when he was first elected to Congress. Based on his past, this was the only conclusion Amash could come to that is consistent to his principles.
While I disagree with his conclusion, I have to respect the man for being true to who he is. I heard one of those talking heads say something to the effect of Amash is angling to switch to being a Democrat, as he has a primary challenger and wants to avoid a primary election fight. While nothing in politics would surprise me these days, that would come close. Amash is a small “l” libertarian. While many of his views are not in step with the typical GOP voter, the idea he is more aligned to the party of Big Government is ludicrous.
I would argue that while some find his views on some subjects seem to be political contrivances, they are anything but. It’s just that as a libertarian, his political views are not easy to pigeonhole. In this case, he takes umbrage with the fact that there is a subset of the body politic that deifies President Trump. Amash sees danger with this, in that such fealty to an individual can cause that subset to willingly overlook corrupt practices by a Chief Executive. But such slavish devotion to a sitting President is not an impeachable offense of that President. If it were, then there are at least a dozen past Presidents who were worthy of impeachment, from Obama, through Reagan, Kennedy, FDR and so on, all the way back to Washington. Amash correctly identifies a problem with politics, in that elections are rarely more than popularity contests of personalities. His solution, however, would paralyze our system of government every time the opposition party assumes control of the House of Representatives.
Regardless of how misguided he might be on this issue, I can’t help but wish we had more politicians who were true to their ideals. Yes, it has put Justin Amash outside the political mainstream. But if that is the only offense you can take with him, then he’s doing a better job than 95% of those in the House today.