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DEMOCRATS, TRUMP, AND THE REAL IMPEACHMENT ISSUES. Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell waited until the afternoon before the start of former President Trump’s impeachment trial to release the basic details of how the trial will proceed. According to their plan, the first thing that will happen is that the Senate will debate, for four hours, the question of whether it is constitutional to try a former president. Then they will take a vote.
Democrats will win that vote, of course. The Senate will decide that it is indeed constitutional for the trial to go forward, and then the trial will go forward. But a lot of Republicans will support the contention that the trial is unconstitutional — remember, 45 of them voted for a similar measure put forth by Sen. Rand Paul in late January.
I’ve written a lot about the extensive arguments on the constitutionality of trying a former president. I believe the best arguments support the position that the trial is indeed unconstitutional. But the fact is, the trial will go on. And at that point, the House Democratic impeachment managers will attempt to prove that then-President Trump incited a crowd to insurrection on January 6, when pro-Trump rioters ransacked the Capitol. And Republican senators will have to address that question, even if they ultimately dismiss it because they believe the entire exercise violates the Constitution.
The key to the argument will be how much weight the senators put on the events of January 6, versus the events of the two months prior to the Capitol riot. That is, did Trump, specifically with his remarks at the “Stop the Steal” rally on the Ellipse, incite the crowd to go to the Capitol, break in, threaten lawmakers, and wreak havoc on the day that Congress was to ratify the results of the Electoral College? Or does a close examination of Trump’s remarks fail to support the charge?
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The Trump defense team, and many Republican lawmakers, will focus almost exclusively on January 6. They will go through Trump’s speech at the rally — he spoke for more than an hour — and conclude that no, he did not incite the crowd to breach the Capitol building. Instead, they will focus on Trump’s exhortation to the crowd to march “over to the Capitol building to peacefully and patriotically make your voices heard.” The Trump defense brief cites his “peacefully” remark 11 times.
Democrats will focus on the president’s admonition to the crowd to “fight like hell,” suggesting that Trump was telling the crowd to use violence at the Capitol. The House impeachment brief quotes the “fight like hell” remark ten times. The Trump defense will respond in two ways. One, it will quote the “fight like hell” line in its fuller context to show that Trump was speaking in political, not physical, terms. Here is that portion of Trump’s speech:
Our brightest days are before us, our greatest achievements still wait. I think one of our great achievements will be election security, because nobody, until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9:00 in the evening [on election night] and say, ‘I want to thank you very much,’ and they go off to some other life. But I said, ‘Something’s wrong here. Something’s really wrong. Can’t have happened.’ And we fight. We fight like hell, and if you don’t fight like hell, you’re not going to have a country any more.”
Was that an exhortation to physically fight? The second point that Trump’s defense team, and undoubtedly many Republican senators, will make is that the word “fight” is commonly used in politics as an appeal to action. The Trump team will show a video of many Democrats using the word themselves — and not just “fight,” but “fight like hell,” the president’s exact phrase. By the time the argument is over, Trump’s defenders will likely have made a persuasive case that the Democrats’ reliance on “fight like hell” is an overly literal reading of the president’s words that twists the plain meaning of his message.
In addition, Republicans will point to the timeline of January 6 as further evidence that Trump’s speech did not incite the crowd to violence. It is now known that some of the rioters gathered originally near the Capitol — they never went to the Trump event on the Ellipse — and had planned days or weeks ahead of time to cause some sort of trouble at the Capitol. They also started their work before Trump even finished speaking. Taken together, all that will be enough to convince most Republicans that Trump did not incite the riot.
For Democrats, the weakness of the “fight like hell” argument will simply show that they need to make a larger case to convince senators that Trump is guilty. They will have to show that the real incitement occurred before January 6 — starting even before the election and going through the weeks and months when Trump refused to accept the election results, even after states had certified their results and the Electoral College voted on December 14 to cement Joe Biden’s election as president. After December 14, Trump turned his attention to January 6, when Congress would ratify the Electoral College results. That would be the last chance to overturn Biden’s victory.
On December 19, Trump tweeted, “Statistically impossible to have lost the 2020 election. Big protest in D.C. on January 6th. Be there, will be wild!” After that, Trump promoted the rally with several tweets, some of them belligerent. For example, on December 26, he tweeted, “If a Democrat Presidential Candidate had an Election Rigged & Stolen, with proof of such acts at a level never seen before, the Democrat Senators would consider it an act of war, and fight to the death. Mitch & the Republicans do NOTHING, just want to let it pass. NO FIGHT!” On January 4, Trump gave a speech in Georgia for Republicans in the Senate races there and said, “The radical Democrats are trying to capture Georgia’s Senate seats so they can wield unchecked, unrestrained, absolute power over every aspect of your lives. If the liberal Democrats take the Senate and the White House — and they’re not taking this White House, we’re going to fight like hell, I’ll tell you right now.”
Democrats will cite those statements and more — they will also quote rioters who, facing criminal charges, have told investigators that they attacked the Capitol because Trump told them to. The House managers will argue that, taken in its entirety, the evidence proves Trump incited the riot. The case will certainly be enough to convince Democratic senators. After all, most of them voted to convict Trump a little more than a year ago in the first impeachment. Some Republicans will join Democrats. Perhaps it will be a handful, but in any event it seems highly unlikely that enough Republicans would vote against the former president to reach the 67 votes required to convict.
So what is the verdict on the incitement charge? First, the case that Trump incited the violence with his January 6 speech is weak. But Democrats have a stronger case when they throw in Trump’s quotes from November until the riot. Trump refused to accept the election result, claimed that the election had been stolen, and urged his supporters to come to Washington to protest. Still, was there any moment where he urged followers to attack the Capitol and do what they did? No, there was not.
The Democrats’ strongest argument is broader: None of this would have happened had Trump not refused to recognize the election results. For weeks, he stirred up his most passionate supporters and encouraged them to believe that the election had been stolen. He asked them to come to Washington to protest. And then things got out of hand in an awful way. But that argument, too, has its weaknesses — even if Trump created a larger context, the rioters acted on their own.
In the end, is any of it enough to convict Trump of incitement to insurrection? The answer will depend on what each senator thinks about the former president and his time in office. Democrats who tried for years to remove Trump from office for all sorts of offenses, real and imagined, will vote to convict. After all, they finally have an opportunity to eliminate Trump as a political factor and divide and weaken their Republican opponents. For their part, some GOP senators who defended Trump through all those Democratic attacks will once again defend him. And if there are any who actually try to view the situation de novo, with fresh eyes, and not in light of years-long grievances and feuds, it’s hard to say where they will come down.
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