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”)