Yesterday, Adam Liptak, the NY Times Supreme Court reporter and legal columnist wrote that the impeachment trial may hinge on the meaning of "incitement". First the meaning of the word "hinge." There are just not 17 Republicans who would vote to convict no matter what evidence is produced or brilliant arguments made. It hinges on the word "partisanship" or, in some cases, "courage," which is in really short supply among Senate Republicans. In other words, Raskin and company get wrap incitement around Trump like a big red ribbon and he's still not getting convicted. But if Liptak is thinking about legal scholars and historians (and, to some extent, voters)... well, then "incitement" becomes important.
I was unaware of a very recent case that Liptak cited: "When Donald J. Trump was running for president in 2016, he pointed to some protesters at one of his rallies and told the crowd to 'get ’em out of here.' The protesters, who said they were then viciously assaulted, sued him for inciting a riot. Trump won the suit. A federal appeals court, relying on a case concerning the Ku Klux Klan, ruled that his exhortation was protected by the First Amendment. And now his lawyers are making the same argument at his impeachment trial, where he stands accused of inciting an insurrection."
But Democrats say that argument misses two key points. An impeachment trial, they contend, is concerned with abuses of official power, meaning that statements that may be legally defensible when uttered by a private individual can nonetheless be grounds for impeachment.
Equally important, they say that Mr. Trump’s statements on Jan. 6 should not be considered in isolation but as the final effort of a calculated, monthslong campaign to violate his oath of office in an effort to retain power.
Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, said on Wednesday that Mr. Trump’s words that day met any conceivable standard for incitement.
“Donald Trump surrendered his role as commander in chief and became the inciter in chief of a dangerous insurrection,” Mr. Raskin said, adding that Mr. Trump’s actions were “the greatest betrayal of the presidential oath in the history of the United States.”
...Precisely because the definition of incitement is so vague, the Supreme Court has placed strict constitutional limits on lawsuits and prosecutions seeking to punish it.
In 1969, in Brandenburg v. Ohio, for instance, the court unanimously overturned the conviction of a leader of a Ku Klux Klan group under an Ohio statute that banned the advocacy of terrorism. The Klan leader, Clarence Brandenburg, had urged his followers at a rally to “send the Jews back to Israel,” to “bury” African-Americans, though he did not call them that, and to consider “revengeance” against politicians and judges who were unsympathetic to white people.
Only Klan members and journalists were present. Because Mr. Brandenburg’s words fell short of calling for immediate violence in a setting where such violence was likely, the Supreme Court ruled that he could not be prosecuted for incitement.
“The constitutional guarantees of free speech and free press,” the court said in an unsigned opinion, “do not permit a state to forbid or proscribe 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.”
...Trump offered a... mixed message on Jan. 6. Even as he urged his supporters to “go to the Capitol” and “fight like hell,” he also made at least one milder comment. “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard,” he said.
Ordinary courts might consider the speech in isolation and credit the occasional calmer passage. But the House managers are urging the Senate to hold a president to a different standard, one that takes account of the months of actions and statements leading to the speech and that holds him responsible for any call to violence or lawlessness.
Jonathan H. Adler, a law professor at Case Western Reserve University, wrote that Mr. Trump might be protected by the Brandenburg decision-- in court.
“However awful and unpresidential his comments may have been, I will accept for the sake of argument that they did not pose a sufficient risk of inducing imminent lawless action of the sort necessary to sacrifice First Amendment protection,” Professor Adler, wrote in a blog post. “Would that mean he could not be impeached for those remarks? Not at all.”
The Constitution allows impeachment for “treason, bribery or other high crimes and misdemeanors.” That last phrase-- “other high crimes and misdemeanors”-- is vague, but it plainly does not encompass every ordinary crime. Rather, it follows two offenses that give a general sense of the kinds of crimes the framers had in mind: treason and bribery. Those are crimes against the state and the rule of law that undermine the ability of the government to function.
Constitutional scholars say that similar offenses-- ones involving the use of official power to threaten the constitutional order-- are what the framers believed could justify removal from office and disqualification from further service.
The distinction between criminal and impeachable conduct helps explain why Mr. Trump’s First Amendment defense has no place in the Senate trial, Keith E. Whittington, a professor of politics at Princeton, wrote in a blog post.
“It is not hard to imagine examples of speech that would be constitutionally protected if uttered by a private citizen but that could and should be grounds for impeachment and removal if uttered by the president of the United States,” he wrote
Mr. Trump’s lawyers, in their trial brief, said their client’s remarks were “core free speech under the First Amendment,” adding that “there can be no dispute that elected public officials engage in protected speech when they speak out on investigations of voting regularity and fairness.”
In their own trial brief, House managers said Mr. Trump had it backward. “Most fundamentally,” they wrote, “the First Amendment protects private citizens from the government; it does not protect government officials from accountability for their own abuses in office.”
But is it really all for the sake of history that this trial is taking place? (There is also significant infotainment value with these proceedings and, I suspect, some swing voters who might be swung... albeit not very many.) The Times' Peter Baker seems to feel that way. He wrote that "With conviction in a polarized Senate seemingly out of reach, the House managers... are aiming their arguments at two other audiences beyond the chamber: the American people whose decision to deny Trump a second term was put at risk and the historians who will one day render their own judgments about the former president and his time in power."
Ken Gormley, president of Duquesne University and the author of books on impeachment, presidents and the Constitution, told Baker that "Regardless of the outcome of the trial, the first paragraph of historical accounts of the Trump presidency is likely" to say that he incited a mob attack on Congress after refusing to accept the results of an election.
Baker is no doubt correct that the managers-- as well as many Republican senators who will not vote to convict-- want to ensure that Trump "remains so politically radioactive that he cannot be the same force he once was-- if not the pariah they think he ought to be, then at least a figure that many mainstream Republicans and their corporate donors keep at arm’s length. In effect, if the Senate will not vote to formally disqualify him from future office, they want the public to do so." Karl Rove noted that he is "not clear they met the legal definition of 'incitement' and 'insurrection,' but he is effectively tarnished for all time and incapable of running in 2024. The question is how much power to dominate the G.O.P. will have been drained away by the time this is over." The Wall Street Journal editorial page proclaimed Trump "permanently scarred>... Now his legacy will be forever stained by this violence, and by his betrayal of his supporters in refusing to tell them the truth. Whatever the result of the impeachment trial, Republicans should remember the betrayal if Trump decides to run again in 2024."
In fact, about 11 million viewers watched the first day of the trial on TV, a larger audience than on the first day of the first impeachment trial. And the viewership was even bigger, by about a million, yesterday.
The managers were also looking past 2024 to the pages of history. When it comes time to record this era, they want scholars to focus first on the events of recent weeks, branding Mr. Trump in the minds of future generations as a dangerous demagogue responsible for a deadly assault on the citadel of democracy.
“Quite honestly, as a presidential historian, it was clear to me watching these events unfold on January 6 that the insurrection would be the defining moment of his presidency,” said Kathryn Cramer Brownell, a history professor at Purdue University. “It clearly seemed a culmination of the ways in which Trump actively worked to advance misinformation, undermine the democratic process and institutions and endorse violence during his presidency.”
That, of course, was not the story line Mr. Trump was promoting as he spent weeks falsely claiming that the election was stolen from him and encouraged supporters to travel to Washington on Jan. 6 to help him find a way to cling to power.
He portrayed himself as an aggrieved victim of a vast conspiracy that involved not just Democrats but Republicans as well, not to mention judges, election officials, the news media, the Cubans and Venezuelans and voting machine companies.
“History will remember,” Mr. Trump declared in a tweet about 10 days before the riot. That it will, and the trial this week will go a long way toward deciding what those memories will be.
And if David Frum winds up writing a history book... His Atlantic column on Wednesday went beyond Trump and savaged his enablers in the GOP-- Rubio first and foremost-- as complicit.
"There is no defense," wrote Frum of the senators like Rubio. "There is only complicity, whether motivated by weakness and fear or by shared guilt. And the House managers forced every Republican senator to feel that complicity from the inside out. That feeling of complicity will not change the final outcome of this Senate trial. The weak will be no less weak for being shamed by their weakness; those who share Trump’s guilt will not cease to share it, because that guilt has been blazed to the world. But at least the House case can restrict the personal and political options of the weak and the guilty. If a senator like Marco Rubio did not feel his world tightening around him, he would not look so haunted. The Republican senators are shrinking before the eyes of the whole country. They are all becoming 'liddle.' They know it. They feel it. They hate it. But they cannot stop it."