January 14, 2021

You would think having failed the first time the Democrats would have learned from their mistake.  Their failure to gain unanimity to impeach Trump in early 2020 was due to the fact that they based it on the content of a phone call that was open to interpretation as to its intent. Republicans in the House and in the Senate latched on to this and voted against impeachment.

Yesterday, I believe, the House made their second mistake by hitching their wagon in pursuit of a second impeachment to a specific accusation of “incitement of insurrection.” (The mistake emanates from the fact that the issue of incitement to commit violence has a very specific meaning and standard that must be met in the context of our free speech protections based on Supreme Court rulings.) In doing so they have given the Republicans a legitimate excuse to once again reject the premise justifying impeachment. Witness the relatively one sided 232 – 197 predominantly House Democrat vote to advance the one article of impeachment to the Senate.

It is true that the President in his refusal to accept the results of the last election created the opportunity for violence to occur following his rally on January 6th. Neither did his “late to the game” exhortations to stop the violence do anything to quell the actions already underway by his more fanatical followers.

But can his rally and the words he used really be justified to levy the incitement charge?  After an examination of the specific words he used, I do not think so.

If anything, someone could argue (and I am sure the Republicans will) that  based on the actual words he spoke he was suggesting to his audience at the rally that they pursue democratic means to voice their objections to what he truly believes is a stolen election.

Here is Trump in his own words

“And you have to get your people (your representatives) to fight. And if they don’t fight, we have to primary (by voting them out of office) the hell out of the ones that don’t fight. You primary them.”

“…we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much for some of them.” 

“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”

“I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

“Today we see a very important event though. Because right over there, right there, we see the event going to take place. And I’m going to be watching. Because history is going to be made. We’re going to see whether or not we have great and courageous leaders, or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity they’ll be ashamed.”

“And you know what? If they do the wrong thing, we should never, ever forget that they did. Never forget. We should never ever forget.”

“I hope Mike has the courage to do what he has to do. And I hope he doesn’t listen to the RINOs and the stupid people that he’s listening to.”

“So today, in addition to challenging the certification of the election, I’m calling on Congress and the state legislatures to quickly pass sweeping election reforms, and you better do it before we have no country left.”

“The Democrats are hopeless, they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.”

“So let’s walk down Pennsylvania Avenue.”

The above words are certainly a call to action but not to imminently commit violence, which is the basis for the charge.

So once again, the Democrats have overreached. If they had simply focused on Trump’s violation of the public trust tied to his continued and unrelenting questioning of the validity of a duly and legitimately conducted election they might have been able to gain bipartisan support…something they will likely not achieve as they move the impeachment forward.