The case against Donald John Trump in this, his second impeachment trial, is a curious thing. The single charge is that he allegedly incited a riot at the Capitol by contesting the results of the 2020 election. But his actions do not meet the legal definition of incitement. As we are constantly reminded, a Senate impeachment trial is not a criminal trial, so the senators can choose to define incitement however they want, but so far they haven’t.
The opening statement from the House managers was almost solely focused on feelings and emotion. At one point, Rep. Jamie Raskin, D-Md., literally broke down in tears while describing the riot. But what he did not offer was a standard by which Trump’s guilt or innocence on the charge of incitement could be based. This is very important because a precedent is being set here.
Likewise, on day two, the Democrats once again made a mainly emotional appeal, focused on video and images from the riots. The closest that Democrats came to showing Trump had encouraged the events at the Capitol was a kind of “incitement by omission.” They tried to show that he intentionally refused to tell rioters to stop once they had started.
Even if that is true, and it’s not entirely clear when Trump was tweeting about the rioters themselves and when he was tweeting about the vast majority of his supporters who stayed peaceful, it’s not incitement. You can’t incite something that already happened. Conservatives in favor of conviction have invented arguments that blend morality, patriotism, and emotion. But they are very short on facts and specifics, which mean any conviction of Trump would be a mile wide and an inch deep.
David French tweeted about the video presentation offered by the Democrats:
Every American should watch every minute of this film. The GOP must not set the precedent that presidents can escape accountability for a campaign of incitement and lies that ends in a direct attack on the American republic: https://t.co/Iwfy0NE6A2
— David French (@DavidAFrench) February 9, 2021
I agree that convicting Trump would set a precedent, just not the one French thinks it will. Standards and precedents have to be testable and repeatable, otherwise they are but merely whims. So what standard would we be setting with this novel definition of incitement that does not exist in our law? We saw politically motivated violence from the left all summer long, much of it directed against police. Did the progressive politicians and activists who frankly spread a lot of lies about how deeply racist our police are incite that violence? It seems to me by this definition they did.
When confronted with this problem, namely that the definition of incitement is so incredibly broad here, some in favor of conviction make an appeal to the fact that the riots happened. Here is National Review’s Dan McLaughlin, one of the loudest of the conservatives for conviction:
"Two people played with matches, we only punished the one who actually set an accidental fire" may not be perfect justice, but it is how things often work in the real world.
— Dan McLaughlin (@baseballcrank) February 9, 2021
He is comparing Democratic Rep. Maxine Waters’ 2018 call for people to get in the faces of Trump officials, to confront them in public, to Trump’s actions. His argument here is that since Waters’ call to action did not lead to immediate violence (although it certainly was a call for aggressive protest), she gets a pass for essentially doing exactly what Trump did. Under this rubric, intention becomes irrelevant. That is a very dangerous road that runs counter to centuries of Western governance. Of course intent matters, and there is not a shred of evidence that proves or even suggests that Trump intended a violent storming of the Capitol.
So if French’s argument falls apart because it could capture anyone in the future who disputes an election result, and McLaughlin’s falls apart because it is unable to grapple with the idea of intention, that really only leaves feelings and an emotional appeal. In some sense, it is like the old saw about trying to define pornography, that you know it when you see it. That’s not good enough for an impeachment conviction. It leaves wide open the door for future impeachments of disgust, where no crime or misdemeanor is committed or proven, but sufficient outrage is manufactured. That is not the purpose of impeachment. It is rather the purpose of elections, the opposite of impeachment.
Of course, emotions do play a role in politics, but the proper role for emotional appeal is as an appeal to voters, not to impeachment juries. If the Senate convicts Trump and bars him from running even though 75 million people voted for him, it would be one of the most anti-democratic actions ever taken by the federal government. That ought not to be done on the basis of feelings, but rather on the basis of facts and circumstances that are testable and repeatable.
Trump’s defense team and Republican senators should not now hide behind the process question of whether you can convict a former president. They should defend directly against the charge of incitement and resoundingly reject this new, vague definition of the word. Further, they should make absolutely clear that questioning the outcome of an election or seeking to fix alleged problems with voting methods must never be considered an offense of any kind, let alone an impeachable one.
The facts of this case are not on the Democrats’ side. The feelings might be, but that must not be allowed to be sufficient. Republicans in the Senate and beyond must show resolve here in the face of furious outrage from those who have been outraged by Trump since before he even took office. Republicans must summon the strength they learned from Trump and stand against this scurrilous impeachment.