Today we head into the second day of the second impeachment trial of Donald J. Trump.  Yesterday the Senate, rightly or wrongly, cast aside any arguments that it was unconstitutional to impeach a President who is no longer in office. I will leave that issue to be argued by constitutional scholars.

That leaves the Senate to now decide whether the primary charge levied against the President, “incitement to insurrection”, is supported by the facts. 

Based on the video presentation made by the House Managers yesterday, it would seem that their tact going forward will be to appeal to the emotions of the Senators sitting in judgment rather than base their case on the actual facts of what was said by the former President on January 6, 2021.  It is also apparent that they will selectively use isolated phrases of the former President’s rally speech to bolster their case for impeachment as opposed to considering his remarks in context and as a whole.  That is because if they did so the primary charge has no basis.

The fact is that the standard for incitement to violence has a specific free speech standard that must be met as determined by the Supreme Court.  Trump’s words on January 6th do not meet that standard.  (See my prior post titled “When Incitement is Not Incitement – The Democrats Have Voted a Faulty Article of Impeachment”, published on January 14, 2021, for more detail on the actual words the former President spoke that day.)

All things considered, the only thing Trump did was to incite those attending the rally to protest.  The decision to storm the Capitol was, based on the evidence, premeditated by the perpetrators, and not a product of Trump’s speech.

There is no doubt in my mind that Trump should be impeached …just not on the basis of the primary charge of incitement to insurrection. A general charge of “”violation of the public trust” would have been more valid…and would potentially gain more support from reluctant Republicans as they deliberate whether to convict. It is also more consistent with impeachment as a political tool to remove someone from office and/or to disqualify them from holding future federal office.

At the same time, specificity and honesty is important in as serious a matter as impeachment.  Emotion should not be used to overwhelm the facts because of a desired result. The end does not justify the means.

Allowing emotion to determine guilt or innocence in this or in other matters actually gives license to the emotions which caused the mob to storm the Capitol. 

Justice demands our elected representative be held to a higher standard. The Constitution and our democracy deserve no less.