The ‘Incitement of Insurrection’ charge will lead only to protracted political wrangling.
The ‘Incitement of Insurrection’ charge will lead only to protracted political wrangling.
I n all likelihood, President Trump is going to be impeached by the House this week, probably on Wednesday. It should be a moment of strong, bipartisan protection of the electoral process and of Congress as an institution. Instead, Democrats — at the very moment when they appear to have the high ground — are politicizing the process. Instead of pursuing a preservation of the Constitution that can unite the country, they are making the impeachment push the coda of their four-year partisan warfare against Trump.
The Democrats have labeled their proposed impeachment article “Incitement of Insurrection.” This is needlessly problematic and provocative.
INCITEMENT
As I’ve explained, the president could not be convicted of the federal penal offense of inciting a crime of violence (Section 373 of Title 18, U.S. Code). Under the criminal law, it would be necessary to prove beyond a reasonable doubt that he intended to cause violence, that he clearly called for it, that believed his words would result in violence, and that there was a strong probability that his words would cause the violence that happened.
Make no mistake, what the president did was reprehensible. It cannot be gainsaid that he recklessly stoked a throng of people, including some mob elements, with rhetoric about the election’s being stolen and the purported need to take back the country. But he also made statements about wanting peace and being against violence; and he would plausibly say that he meant the rhetoric about taking back the country in a political sense, not a forcible sense.
Proof of recklessness is not sufficient for a criminal incitement conviction. There has to be specific intent to cause violent crime.
Now, as we’ve repeatedly observed, criminal prosecution and impeachment are fundamentally different. Conduct that would not qualify as a crime can still properly be alleged as an impeachable offense. The best way to think of this is in the difference between a right and a privilege. Liberty is a right that everyone has, so for it to be taken away, the state must prove an accused’s guilt beyond a reasonable doubt under courtroom due-process standards. By contrast, public office is a privilege; there is no right to hold it. A person who is privileged with a public trust has a continuing obligation to demonstrate fitness for it. If an official engages in conduct that illustrates his unfitness, the Constitution’s impeachment process empowers Congress to remove the privilege.
Consequently, Trump can be guilty of incitement in the sense of recklessly stoking the rabble, with the consequence that a storming of the Capitol ensued, which was foreseeable even if he did not intend it. As president, he had a duty not to act recklessly. He had a duty to protect Congress. He had a duty to protect Vice President Pence. Even if he wanted only to put political pressure on the vice president and congressional Republicans, egging a large crowd on to a raucous demonstration at the Capitol was a grossly counter-constitutional way to do that — and would have been even if the situation had not predictably descended into a lethal melee.
If the House is going to plead its impeachment article as incitement, there will inevitably be a pitched legal battle over whether Trump committed the essential legal elements of a criminal incitement offense. Recall last year’s impeachment, when there was, analogously, a debate over whether Trump had obstructed Congress in the criminal-law sense, or just in the sense of abusing his power sufficient to warrant impeachment.
Pleading the impeachment offense as incitement would give the president a defense he would not otherwise have. It would also give his defenders an escape hatch to vote against impeachment on the ground that the conduct did not rise to incitement under the criminal law.
INSURRECTION: The Definitional Problem
Then there is insurrection. By pleading its impeachment article as “incitement of insurrection,” House Democrats create two problems: definition and causation.
Did what happened last Wednesday qualify as insurrection as a matter of law? I think it is accurate to describe the rioters who stormed the Capitol as an “insurrectionist mob.” But was this insurrection in the strict legal sense?
Insurrection, according to West’s Encyclopedia of American Law, is “a rebellion of citizens against their government, usually manifested by acts of violence.” To my mind, what happened Wednesday was a riot in the seat of government to extort Congress and the vice president to take actions against the Constitution. It is certainly reasonable to conclude that such conduct falls within the ambit of insurrection. But it’s not cut-and-dried.
The president’s defenders will contend that even though some people who besieged the Capitol turned out to be violent rioters, many others were there not to overthrow the system but to be heard by the people’s representatives on the matter of election integrity. That they were stirred up to that end by Trump’s demagoguery is beside the point. The question is whether they were truly engaged in insurrection. That is an exaggeration with respect to many people on the scene. They wanted to support Trump, but they meant no physical harm to lawmakers or the vice president. Many of them are surely guilty of trespassing, and their presence made a dangerous situation more dangerous; but they were not rebelling against the United States, and they intended no violence.
Then there is the matter of the Democrats’ legerdemain. Throughout the late spring and summer, we had violent rioting and attempts to destroy government and private property. Dozens of people were killed and seriously injured, including police officers. Yet, Democrats maintained that these were “mostly peaceful” “demonstrations,” not insurrection or even rioting. They strenuously objected when it was suggested that the president should invoke the Insurrection Act to restore order.
Democrats are now taking the position that what happened last Wednesday was insurrection. The only real difference is that, this time, their political adversaries were the culprits, whereas the violence earlier this year (which continues in some places) was carried out by people they favor. Democrats cannot reasonably expect Republicans and the rest of the country not to notice that they are politicizing the term insurrection. They want to condemn Trump supporters for insurrection while turning a blind eye to the same kind of conduct when it is committed in a different political context.
This definitional problem is another iteration of the two-tiered system of justice that sparks much of the outrage in the country. It will not ease tensions to signal, not just to Trump supporters but to Republicans, conservatives, and other fair-minded people, that whether you are an “insurrectionist” depends on whether your use of force is in support of or opposition to the pieties of the political Left.
INSURRECTION: The Causation Problem
On the matter of insurrection, the question of causation is even more problematic.
President Trump should have been mindful that his rabble-rousing could lead to violence. But what he wanted (inappropriately) was a political demonstration outside the Capitol, in which thousands of people would chant, “Stop the steal,” “Fight for Trump,” and similar blather. He did not want them to storm the building. He did not want people to be killed and injured.
What he wanted was to intimidate Pence and lawmakers with the size and zeal of the Trump-supporting crowd. He wanted Republicans to see his followers as a political force to be reckoned with, one that would subject the “RINOs” (redefined as any Republican who does not blindly tow the Trump line) to future primary challenges and political opposition if they did not agree to overturn the election result based on unproven allegations of election fraud and rigging.
All of that is despicable and impeachable. Still, it does not mean Trump caused an insurrection — even assuming, for argument’s sake, that what happened is properly labeled an “insurrection.”
CAN THERE BE A CONSENSUS IMPEACHMENT?
If what the Democrats truly want is bipartisan consensus in the service of national security, rather than political combat, the articles of impeachment they plan to file should charge the president with (a) subversion of the Constitution’s electoral process, particularly the Twelfth Amendment counting of the sovereign states’ electoral votes; (b) recklessly encouraging a raucous political demonstration that foreseeably devolved into a violent storming of the seat of our government; and (c) depraved indifference to the welfare of the vice president, Congress, security personnel, and other Americans who were in and around the Capitol on January 6.
That would be an accurate description of impeachable offenses. It would not disintegrate into legal wrangling over incitement, insurrection, and causation.
I have urged (here and here) that there are better ways to handle the current crisis in light of the fact that President Trump will be out of office in (now) nine days. Regardless of what I think would be the best course of action, though, the Democrats run the House. Impeachment is the constitutional remedy for egregious presidential misconduct. Therefore, Democrats are within their rights to press for impeachment; indeed, many Republicans agree that impeachment is the best way forward — and most probably would if we were months, rather than just days, from the end of Trump’s term.
If Democrats plead impeachment articles in a manner that is accurate and designed to promote consensus, Republicans who opposed impeachment would rightly be criticized — as long as Democrats were truly pursuing impeachment, rather than a political stunt (a real possibility, which I will address in a separate post). But if Democrats, under the guise of impeachment articles, write a political narrative that is factually dubious, that is designed to vindicate their long-held grievances against Trump, or that holds their political opponents to a more exacting standard of conduct than they apply to left-wing rioters, Republicans will object, as they should.