It’s only one article, but House Democrats made it as comprehensive as possible. As a criminal case for incitement, it falls far short. But impeachment is not prosecution, and it doesn’t take a felony to meet the bar for “high crimes and misdemeanors,” as we have seen:
FINAL DRAFT of article of impeachment against President Trump, titled “Incitement of Insurrection.”
The article is expected to be introduced Monday by Reps. Ciciline, Lieu, and Raskin, and has more than 200 Democratic co-sponsors. pic.twitter.com/DAZle1w59g
— NBC News (@NBCNews) January 11, 2021
A trio of House Democrats close to leadership on Monday introduced a single article of impeachment against President Trump, charging him with inciting a mob of his supporters to carry out a violent attack on the Capitol in a bid to overturn Joe Biden’s election victory.
The article, co-authored by Reps. David Cicilline (R-I.), Ted Lieu (Calif.) and Jamie Raskin (Md.), states that Trump engaged in high crimes and misdemeanors by “willfully inciting violence against the Government of the United States.”
In a speech outside the White House before Wednesday’s assault, Trump falsely claimed that he had won the election and urged thousands of his fans to march to the Capitol to support his GOP allies, using phrases like “you have to show strength” and “if you don’t fight like hell you’re not going to have a country anymore.” …
“[I]ncited by President Trump, members of the crowd he had addressed, in an attempt to … interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts,” the impeachment article states.
The article also includes the Trump call to Brad Raffensperger as support for the incitement charge. That might have been better purposed in a separate article for abuse of office rather than incitement, since it doesn’t have much relation to the core charge. Putting two articles on the floor would complicate passage and debate, though, and House Democrats obviously believe that time is of the essence.
They believe that the votes already exist for a second impeachment, including some Republicans:
Rep. David Cicilline, a leader of the impeachment effort, expresses confidence there will be majority support to pass the impeachment resolution and thinks vote could be Wednesday. Says some GOP members will support. “We have the numbers to pass it,” he told me
— Manu Raju (@mkraju) January 11, 2021
Getting routed out of their offices and chambers by Trump rally-goers might have made a bipartisan impression, to be sure. Democrats could pass these on a simple majority under regular order, so they don’t need Republican votes, but …. they’d certainly like to have them.
This charge wouldn’t hold up in court, of course, even if that’s not the point here. Under Brandenburg, incitement requires imminence and rhetoric that calls specifically for violence. “You have to fight” is far too vague and commonly used in political speech to qualify as criminal incitement. So is claiming to have won even when losing, which is reprehensible but fully within the First Amendment. The only person who might need to worry about criminal incitement is Rudy Giuliani for his “trial by combat” exhortation, but as I wrote on Thursday, that’s probably a reach too.
However, don’t lose sight of the fact that impeachment is a process for dealing with political violations and abuses. It would be almost unthinkable that a Congress that had to flee the Capitol after the executive sent a mob down Pennsylvania Avenue would decline to use that mechanism in response. Even if Trump can’t be charged with incitement as a legal matter, morally and politically it can be argued that Trump did exactly that as a means to prevent Congress from completing the process of a national election that Trump lost.
Frankly, though, the Raffensperger call might have been an easier call for abuse of power. Nancy Pelosi et al are understandably furious over narrowly avoiding being lynched in their own offices, but the argument is likely cleaner on the other issue. That doesn’t matter in the House, but it might matter in the Senate, where a few Republicans might worry that the same allegation might apply to them as well — and where it takes two-thirds rather than a simple majority to remove and/or apply a disqualifier from further federal office.
Of course, the Senate has to come into session to hold the trial at all. On Friday, Mitch McConnell explained that the earliest possible time for that would be one hour after Joe Biden takes office, which would make such a trial arguably moot. Allahpundit will have more in a moment on that question, but it raises a serious question of whether Congress might be taking the unconstitutional action of a bill of attainder if they try to impose a penalty of any kind on Trump after he leaves office.
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