I think it may have been a tactical mistake for the Democrats in the House of Representatives to go with a single simple "incitement" count. A better approach would have been to indict Trump both on incitement to riot and on conspiracy to cause or produce a riot.
Thinking in terms of first amendment law [yes, there is a lot of room for argument as to whether we ought to be thinking in those terms in this matter -- but let us go with it anyway for sake of discussion] -- and thinking of the specific speech of Trump's on which attention at first focused -- the claim that this was "incitement" and punishable (a false cry of "fire" in a crowded theatre) is a tricky one. Any evidence that this was not a spur of the moment reaction by the crowd, any evidence that it had been planned, EVEN IF TRUMP WAS ONE OF THE PLANNERS, tended logically to weaken the claim of incitement.
Trumps lawyers -- not his A team, nor his B team, and indeed so far down the alphabet they have aptly been called the Q team -- were right to play on this problem. If members of the crowd had long planned to set off a stampede toward the exits at the theatre in question, then the case against the single guy yelling "fire" weakens. It doesn't look like incitement, so much.
This is why it would have been good to charge Trump also with conspiracy. Any argument that it was too planned an event to be a Brandenburg v. Ohio case of incitement could be used to strengthen the case that it was a conspiracy to cause the riot, and Trump could be tied as well to the earlier stages thereof.
At the end, it didn't matter. McConnell, who either has a broken soul or none at all, had more than 1/3d of the votes in his pocket and that was all that mattered. Still, as a matter of jurisprudential aesthetics, a two-count approach would have been better.
I disagree that there is a lot of room for argument as to whether we ought to be thinking in terms of First Amendment law. It is clear that we should not be. A federal officer can be impeached and removed for engaging in protected speech. Suppose that we were at war with Russia, and Trump said, "I hope that Russia wins." He would have a First Amendment right to say that, but could be impeached and removed for saying it.
ReplyDeleteI recognize that members of Congress are free to take into account whether the high crimes and misdemeanors with which a federal officer is charged are protected by the First Amendment, but that's only because they are free to take anything they wish into account. They have the final word.