Impeachment’s Indictment is Insurrection’s Incitement: Part II

TLDRUpFront: A mega-mullet focusing on the standards of judgment, relevant laws, and analysis of the evidence on the key charges facing President Trump in the Senate Trial. Part two of two.

FullContextInTheBack:

This is part two of a two-part megamullet providing context and analysis on eight key questions readers may have regarding the Senate Trial of former President Trump that began this week. Those questions are:

1. What are the Charges and Opening Arguments in the Trial?
2. What is the Schedule for the Trial?
3. Is the Senate Trial Constitutional?
4. What are the Key Procedures and Concepts of the Senate Trial?
5. Did the President attempt to ‘subvert and obstruct’ certifying the 2020 Presidential election?
6. Was January 6th an Insurrection?
7. Did the President incite the Insurrection?
8. Was the President derelict in his duties?

 

I covered questions 1-4 in Part I. These consist mainly of procedural issues and concepts on the Trial itself. In this part, I intend to cover questions 5-8, which get to the heart of analyzing President’s Trump behavior before, during, and after the January 6^th Insurrection.

The three main charges against the President are:

1. President Trump attempted to subvert and obstruct the Presidential 2020 Election certification, including threatening a Secretary of State of Georgia if he didn’t overturn election results.
2. President Trump incited the January 6^th Insurrection through prior conduct and the January 6^th Ellipse Rally.
3. President Trump then failed in his duty as Commander in Chief to secure the Capitol and Constitutional procedures of the Electoral College certification.[1]

Any one of these in isolation would be a serious violation of the President’s constitutional duty and sufficient to warrant conviction and permanent disqualification from holding any further office of public trust. In this article, I go through each charge in order, splitting #2 into two components, establishing that first what happened on January 6^th was an insurrection and then analyzing the President’s role in inciting it, subsequently failing to suppress it as Commander-in-Chief.

The Standard of Judgment

As described previously, the Senate’s most important role in an Impeachment Trial is to pass judgment on what is permissible and impermissible behavior by a President. But what standard is used in this judgment? By what standard can Senators, or us, determine whether a President is guilty of an impeachable offense?

As a Radical Moderate – there is but one standard for all Presidents. The standard is set by the Oath of Office, which states: “that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.” (ART II, Section 1)

Breaking this out into components creates two duties and two standards:

Duty:

1. Execute the Office of the President
2. Preserve, protect, and defend the Constitution

Standards:

1. Faithfully
2. To the best of their ability

“Faithfully” execution of laws was interpreted as consisting of three parts:

1. Not to act beyond the lawful authority
2. Not to misuse funds or take unauthorized profits
3. Diligent, careful, good faith, honest, and impartial execution of the law

The President will act in “good faith, for the public interest, and not for reasons of self-dealing, self-protection, or other bad faith, personal purposes.” [2]

The Presidential Oath sets the President with an obligation higher than any citizen, career civil servant, military enlisted or officer, and even other elected officials.  Only Supreme Court Judges have an Oath even close in composition.

Of course, citizens, unless they are naturalized, are not required to swear an Oath. Civil servants, military service members, elected officials, and judges all swear to bear “true faith and allegiance” and “support and defend” the Constitution. Additionally, civil servants, military officers, and federal judges must swear to “faithfully discharge the duties of the office.”

But only Presidents and Supreme Court Justices are required to swear to do so to the best of their ability. And in a strict comparison, the “ability” of Supreme Court Justices is naturally constrained by their positions. They rarely hold unilateral power working within a bench of fellow judges to reach a verdict or a hierarchy of courts for appeal. They are only able to render verdicts on the matters before them. Justices are only “on duty” when they sit in judgment.

In contrast, the President is the sole holder of all formal powers of the Executive Branch, which include the powers of Commander-in-Chief, ability to unilaterally issue Executive Orders, conduct Clemency, nominate Appointments for Cabinet or Courts, conduct Foreign Affairs, and exert Executive Privilege among others. The President is on duty every moment from taking the Oath of Office until they leave it, except for those rare instances where they have passed that duty to the Vice President under the 25^th Amendment.

The President also wields enormous soft power. By official protocol, all others stand when the President enters the room. They are always to be addressed as Mr. or Mrs. President. By common custom, it is verboten to disagree or fail to show respect for the Office of the Presidency, even if the person holding that office is worthy of contempt. At any given point in time, there are ~2M Federal employees required by law to follow the President’s direction. Additionally, ~16M state & local employees will by custom follow an order from the President, ~18M veterans accultured to follow the orders of a sitting Commander-in-Chief, and those overlap with between the 60-75M voters who, unlike any other position in the United States, all voted for a single individual for the office they now hold.

When the President speaks, acts, and behaves, they do so with this explicit and implicit set of powers behind them. And it is the scope of those powers that provide context to just what “faithfully execute” and “best of my ability” actually means.

The President is in a unique position within the Constitutional framework of the Republic. And likewise, the standard they must be held to is as unique as the powers they wield.  When they swear to “faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States,” that sets a standard of permissible or impermissible behavior. And that standard exists for every moment their duty exists. From the moment they take the Oath to the moment they leave the office. They must be faithful in their execution, which includes the suffering of personal harm or set back

And it is by this standard that the Senate should judge any Impeached President in a Trial.

Did the President attempt to ‘subvert and obstruct’ certifying the 2020 Presidential election?

Presidential elections are an explicit function of the Constitution. The Office of the President has a vast array of duties to directly secure and indirectly support States in conducting them. By Oath, the President is thus required to faithfully execute these duties and do so to the best of their ability.

For purposes of the Impeachment Trial, the charge of subverting and obstructing references a phone call on January 2^nd between President Trump and his attorneys held with Georgia Secretary of State Brad Raffensperger and his Counsel Ryan Germany.

Both State and Federal election laws govern this phone call and provide a legal framework for understanding what happened. At the State level, OCGA § 21-2-597, intentional interference with election duties, and OCGA § 21-2-604 and criminal solicitation to commit election fraud both apply. The latter:

“(a)(1) A person commits the offense of criminal solicitation to commit election fraud in the first degree when, with the intent that another person engage in conduct constituting a felony under this article, he or she solicits, requests, commands, importunes, or otherwise attempts to cause the other person to engage in such conduct.” O.C.G.A. § 21-2-604 [3]

Federal Laws 18 USC § 241 & § 242 as well as 52 US § 20511govern, and the latter states:

“(2)knowingly and willfully deprives, defrauds, or attempts to deprive or defraud the residents of a State of a fair and impartially conducted election process, by—

(B)the procurement, casting, or tabulation of ballots that are known by the person to be materially false, fictitious, or fraudulent under the laws of the State in which the election is held” [4]

Keep those laws in mind as we review the transcript of the President’s own words on the phone call from 37:00 through 39:40 (emphasis added):

“…it is more illegal for you than it is for them [Democrats] because, you know, what they did and you’re not reporting it. That’s a criminal, that’s a criminal offense. And you can’t let that happen. That’s a big risk to you and to Ryan, your lawyer. And that’s a big risk…So look. All I want to do is this. I just want to find 11,780 votes, which is one more than we have because we won the state. And flipping the state is a great testament to our country because, you know, this is — it’s a testament that they can admit to a mistake or whatever you want to call it. If it was a mistake, I don’t know.” [5]

Although the rest of the call is a true Georgia peach, the President hits all the marks here. Instead, the President demonstrates his intent and willful knowledge when he asks the Secretary of State to “find 11,780 votes,” which is exactly one more than Biden’s tally. And he knows they’re false because he doesn’t care how the Secretary of State does it, advising him to admit something untrue or make up an explanation as long as they find the votes. [6] He even threatens both Raffensperger and Germany with criminal activity.

The defenses of the President’s behavior are generally weak. The first specific to the call is that it’s a legal settlement and thus privileged. That presumes Federal elections are civil suits where private parties can meet outside the public’s knowledge and come to a deal on ‘settling’ the outcome. But there is a lawful process for conducting votes, recounts, and audits, transparent to all parties. And the Georgia Secretary of State denies that this was a legal settlement call. Even if it were privileged, once the President described the phone call’s contents first in a Tweet, he waived any presumption of confidentiality. [6]

The second defense, and one that comes up more generally on the President’s post-election, is that the President is faithfully executing his duties as President to root out fraud. After all, if his job is to preserve, protect, and defend the Constitution, shouldn’t he be zealous in persecuting election fraud? This goes back to the meaning of faithfully execute. Which is to impartially execute the lawful authority of the office and not for personal gain. The President is not seeking to identify all fraudulent votes, whether they were cast for Biden or himself. He’s asking the Secretary to exceed lawful authority with an additional tabulation, this time using a team selected by President Trump. A remedy that doesn’t exist under Georgia law for a good reason. And at this point, the vote had already been counted, audited, hand-counted, and subjected to investigation by the GBI. Those are lawful acts within the authority of the Secretary of State and the President to ask. But he’s not asking for those. He’s threatening criminal retaliation.

This single incident is damning enough. But Georgia wasn’t the only focus of President Trump. The Senate could call witnesses from within the White House or other States to indicate that this is just one instance of criminal behavior pattern. See Part I for a discussion of Witnesses & Executive Privilege.

 

Was January 6^th an Insurrection?

But election fraud is just the Boy Wonder sidekick to Batman’s Incitement of Insurrection charge for the Senate Trial. Before determining whether the President either incited an Insurrection or failed as Commander-in-Chief to suppress one, it’s important to establish whether January 6^th was an Insurrection. On a recent Facebook Live Ask My Anything, I deconflicted the following terms of conflict: Protest, Riot, Domestic Terrorism, Rebellion & Insurrection, Seditious Conspiracy, Treason, Insurgency, Revolution/Civil War, and Coup. If you want to watch the full video, the segment can be found here. By the end of the analysis, I narrowed the complex-event of January 6^th into three overlapping types: riot, domestic terrorism, and insurrection, while excluding the rest.

As I’ve mentioned before when discussing riots, it’s consistent that a riot’s experience can be quite different given five minutes of difference in time or 50 meters of distance.  The image does not mean that all individuals involved are guilty of the three types of infractions, nor that President Trump is responsible for acts of domestic terrorism. But in a complex event like January 6^th, individuals can fall into one, some, or all three circles depending on their behaviors and actions. And as I mentioned in the video, establishing that January 6^th included elements of a riot or elements of domestic terrorism is not that hard, given the broad language in which these terms are written. I’ll dispense with those first, so we can get to the meet of defining insurrection and establishing whether January 6^th was an Insurrection.

Legal Definitions of Riot, Domestic Terrorism & Insurrection

Riot

First up is a riot defined under US code as (emphasis added):

“a) …a public disturbance involving (1) an act or acts of violence by one or more persons part of an assemblage of three or more persons” [7]

I think we can safely call January 6^th a riot.

Domestic Terrorism

Moving on to Domestic Terrorism, it is defined as:

“(A)involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B)appear to be intended (i)to intimidate or coerce a civilian population; (ii)to influence the policy of a government by intimidation or coercion; or (iii)to affect the conduct of a government by mass destruction, assassination, or kidnapping; and (C)occur primarily within the territorial jurisdiction of the United States.” [8]

Mutual Complicity & Legal Definitions

Again, I don’t think there’s any doubt that elements of the January 6^th riot included elements of domestic terrorism. But a quick pause for a jaunt down mutual complicity in complex events. Just because a riot includes elements of domestic terrorism does not mean all rioters are terrorists. This is why felony-murder probably won’t apply to everyone who stormed the Capitol, even though it may apply to some. Complex events of hundreds or thousands of people may mix innocent and criminal behavior and mix many different crimes. Storming the Capitol wasn’t one single crime, but hundreds to thousands of individual crimes. For example, extending a felony-murder from those who beat the officer to death to everyone who stormed the Capitol requires everyone to be involved in the same crime. And it’d be hard to argue that everyone who entered the Capitol complex intended, or even conspired, to engage in felony murder or domestic terrorism, even though others certainly did. [9]

Insurrection

We can accept that January 6^th was both a riot and included elements of domestic terrorism. But was it an insurrection? The law defines insurrection in two ways, though you have to dig to find them. The first and most common definition comes from 18 USC § 2383 “Rebellion or Insurrection,” which states:

“Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” [10]

But that’s not a satisfying definition to many because it doesn’t really define what an insurrection is, instead of relying on what has always been common knowledge and understanding throughout US history (see below.)

This being the age of Facebook; however, a stronger definition may be needed, and that can be found in 10 USC §252 “Use of Militia and armed forces to enforce Federal authority” and  §253 “Interference with State and Federal law.” These aren’t immediately obvious sources of insurrections definition because they’re actually defining the President’s power to call forth the militia, but within the listed powers are defining criteria of what can constitute an insurrection. First in §252:

“Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.”

The terms “make it impracticable to enforce the United States’ laws…by the ordinary course of judicial proceedings” establishes a threshold or floor for what an insurrection or rebellion is. If a criminal act can be handled by normal law enforcement means, it’s probably not an insurrection or rebellion. This is why most protests, and even crimes, don’t rise to the insurrection level; they can be handled by normal means. But riots, often involving thousands if not tens of thousands of people, can quickly evolve into insurrections under specific circumstances. It’s ‘impracticable’ to enforce laws in the ordinary course at that size and complexity.

The specific circumstances of a rebellion or insurrection are clarified in §253 by identifying the criteria under which a President can call out the militia (emphasis added):

“The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy, if it—

(1)so hinders the execution of the laws of that State, and of the United States within the State, …

(2)opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” [11]

Insurrections defined herein is a use of violence that hinders, opposes, or obstructs the execution of laws of the United States at a level above-and-beyond that which can be handled by ordinary law enforcement means. And this is why I’ve been reluctant to call events like the occupation of the Mahler Wildlife Refugee Center, the Portland protests outside a Federal Court House, or even the storming of the Oregon legislature “insurrections.” It’s a careful word intended to be used carefully for specific things. And we can squint and find laws that are hindered in all three of those situations. But a Constitutionally mandated certification of the Electoral College vote of a Presidential Election by a joint session of Congress requires no magnifying glass, and it is well beyond the ordinary means of law enforcement to handle or manage.

Legally and as I’ll show next historically, insurrection consists of these extra-ordinary violent acts designed to hinder, oppose, or obstruct key governmental functions often occurring within a specific governmental location targeted to stop the function. An insurrection often arises from a riot but differs crucially from a riot or even domestic terrorism. In this function & place criteria and the threshold effect, ordinary means of dealing with it are no longer sufficient. But contrary to popular belief, there does not need to be sustained operations by large forces, high casualties, or even extensive weaponry to qualify as an insurrection. This is why January 6^th fits well within the historical cases.

Historical Examples of Insurrection

Having been formed arguably from an insurrection, the US has a rich history of insurrections. We can use some of these as case studies to demonstrate that January 6^th qualifies, not just legally but in practice, as an insurrection or rebellion. These are just a sample.

Shays Rebellion 1786-87

Before the Constitution was even ratified, Shays Rebellion put an imprint on the definition of Insurrection. It was referred to by Founding Fathers as one (see below.)  The rebellion consisted of a dispute over farmers’ debts that could not be paid due to hyperinflation and the generally miserable economic situation under the Articles of Confederation. When courts held hearings to seize delinquent farmers’ assets and convey them to the creditors, citizens rose up, stormed the courts, and prevented the cases from being heard. The place and the function of the place at the time the actions took place are key here. The forces involved over several months numbered only a few thousand, under ten people died, and several dozen were wounded. Of similar scope and scale as the January 6^th event.[12]

 

Election Riot of 1874

There were several insurrections as part of the larger insurgency that accompanied Reconstruction after the Civil War. On election day of 1874, the Alabama chapter of the “White League,” a white supremacy terrorist organization, attacked polls targeting black voters and their white supporters. The terrorists killed seven black Republicans, wounded 70 more, stormed the polling place, and destroyed the ballot box. They then unseated every Republican official who had won by a margin of two-to-one and claimed every county seat for a Democrat. This mirrors in form, function, and intent the January 6^th Insurrection, which didn’t just consist of a riot but was aimed at the specific purpose of obstructing the certifying of an elected official and replacing them with a preferred candidate. [13]

Puerto Rico Nationalist

In the 20^th Century, in 1954, Puerto Rican separatists stormed the Capital in a violent attack killing five.[14] This case is very relevant to the January 6^th Insurrection both because it occurred in the same spot but represents some of the crucial case law that has come to define both insurrection and seditious conspiracy.

More suspects were identified beyond those who had just stormed the Capital, and they were included in charges of sedition. This expansive approach to the conspiracy of sedition was appealed and resulted in precedent-setting rulings.

In the United States vs. Lebron, the ruling first defines the attack on the Capitol in terms reminiscent of an insurrection: “once a political party, had abandoned hope of achieving Puerto Rican independence through legitimate political processes in favor of overthrowing American authority in that commonwealth by force of arms and by violence.” [15]  The January 6^th Insurrections mirrors this language. Participants were of a political movement but, having abandoned hope of achieving their aims through legitimate political processes, resorted to violence to overthrow the results.

The US vs. Lebron ruling also had important precedents into the nature and breadth of sedition charges and their interaction with Free Speech, which I will refer to in the Incitement question.

1983 Senate Chambers Bombing

The 1983 Senate Chambers bombing is an example of domestic terrorism, but probably not insurrection. In 1983, left-wing extremists planted a bomb outside the Senate chambers. It was set to go off late in the evening, so no one was hurt or injured, but it was clearly terrorism. After several years of investigation, six conspirators were identified and charged in 1988. By that point, several of the conspirators had already been charged and convicted on the evidence of another terrorist plot. But the same evidence, it turns out, also implicated them in the 1983 plot. This led to a complicated set of rulings over double-jeopardy procedures and whether the same set of evidence can be used to convict an individual of two separate crimes tried separately. [16] Although it’d make a fascinating Law & Order episode, that’s less pertinent than the eventual sentences handed down, terms of 20 years, even though no one was injured. Conspirators, as well as those who actually planted the bombs, were charged. [17]  Although probably not a case of Insurrection, it is an interesting case of domestic terrorism inside the Capitol.

Expert Opinions on Insurrection

As the Dude says:

So don’t just take my word for it. . Various expert opinions have also described insurrections over the year, including applying that term to January 6^th.

In a justification to detain Jacob Chansley, aka Jacob Angeli, aka the “bro in buffalo hat,” a US Attorney in charging the Buffalo Shamon Dude called the riot for what it was – an act of insurrection. And thus, anything that leads to the furtherance of that act, sedition. [18] The US Attorney has been joined by Republican Senators including, at the time, Majority Leader McConnel, who described the event as a “failed insurrection.” [19]

Additionally, in a memorandum to all service members released on January 12th, the Joint Chiefs, who are the senior military leaders of the US Armed Forces, repeated the bedrock principles of the US Military.[20] They named what happened on January 6th as sedition and insurrection.

As an aside, this continues a bedrock, and unanimous, the armed forces’ senior uniform leadership’s opposition to President Trump’s continued attempts to politicize and draw the military into his unlawful ideas. In our 2020 Year in Review, we identified the most “under-reported story” were the June 3rd announcements by senior military leaders, civilian and uniform, against President Trump’s threat to invoke the Insurrection Act.   And in between these events, when called upon to unlawfully intervene, the military has been quick to say “no,” such as when Michael Flynn floated the idea of martial law being invoked and a second election being run. The Secretary and Chief of Staff of the US Army both came out the day after the comments became public, stating that was nonsense.[21]

If we want to reach back to the Founding Fathers, they knew what an insurrection was in form and term. And a description of insurrections, and their involvement in putting them down, is littered across letters, diary entries, reports to Congress from no less than Presidents George Washington, Thomas Jefferson, and James Madison at various times, among many others. [22]

 

Did the President incite the Insurrection?

There’s a solid case that January 6^th was an Insurrection. But that doesn’t mean President Trump is guilty of inciting it. Although the Senate Trial is “inherently political” as described in Part I, it’s often useful to review the relevant laws on incitement and seditious conspiracy.

Free speech in the United States is protected unless it falls under specific categories. Relevant to this discussion are incitement to violence, incitement to riot, and seditious conspiracy, a particular form of incitement related to insurrection and rebellion. Reviewing the laws and concepts first in order before examining President Trump’s case.

The Brandenburg Test covers the general crime of whether free speech crosses into unlawful speech inciting violence. And there are generally two tests. Is the speech “directed to inciting or producing imminent lawless action,” AND that the speech is “likely to incite or produce such action.”[23] In this case, the Brandenburg Test can only be applied to speech that precedes the event itself. Under a Brandenburg Test, one cannot retroactively incite violence that has already occurred. The Brandenburg Test is an evolution from a previous test of “clear and present danger” found in Dennis v. the United States. Under this criteria, if speech is intended to result in a crime and a clear and present danger that it actually will result in a crime, the First Amendment does not protect the speaker from government action. Success or failure does not matter. Brandenburg softened this from an absolute to a “likeliness” test. [24]

 

But this temporal criterion is diminished when we return to the previous law on riots and its specific definition of incitement (emphasis added):

b) “…the term “to incite a riot”, or “to organize, promote, encourage, participate in, or carry on a riot”, includes…urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts. [7]

The bolded portions are key for two reasons. First, because although simple advocacy of ideas or expression belief is not incitement because they are protected by free speech, advocacy of violence is incitement. This follows the Brandenburg test, but the incitement to riot law goes a step forward. It removes the temporal constraints, which is the second key element. Under an incitement to riot, any ‘assertion of the rightness of” or “the right to commit” any such act, either prior or during the riot itself, can fall afoul of this law.

And finally, we come to seditious conspiracy, which is a very particular form of incitement to acts of insurrection, rebellion, or treason. The definition in 18 US Code § 2384 is (emphasis added):

“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both. [25]

This is where the Puerto Rico nationalist attack on the Capitol in 1954 comes up again. Some of those convicted of seditious conspiracy in the original court appealed the verdict, arguing they were not present when the attack was carried out. But the US vs. Lebron ruling articulated an expansive view of what constitutes a “conspiracy” for the crime of sedition and that it can apply to disparate groups widely separated, even if not all eventually entered the Capitol itself. [15] Most importantly, it codified that seditious conspiracy is not protected by free speech.

From this set of laws and tests, we can distill several key elements to look for:

1. Violent Incitement: Any speech by President Trump before the riot that directs lawless action and is likely to produce it. (Brandenburg Test)
2. Incitement of Riot: Includes violent incitement above and any speech by President Trump at any time that asserts the rightness of or the right to commit violent acts.
3. Seditious Conspiracy: The above, but also any speech by President Trump that incites the use of force to prevent, hinder, or delay the execution of any law of the United States, or to seize, take, or possess any property.

From here, we could analyze Trump’s speech at the January 6^th Rally and compare how many times the President said “fight” versus “go peacefully” (20:1 in case anyone’s wondering.) Or I could point out how simply saying the word peace does not mean either the speaker or audience has peaceful intentions (See Hitler’s 1939 Reichstag speech where “peace” is mentioned 14 times.)  But there are a few key elements to call out concerning the relevant to the laws above.

 

During his Rally, President Trump, among other things, stated that his supporters had to show strength, and they were at risk of losing the country if they showed weakness. He named specific Congressional Representatives, including Rep Cheney and Vice President Pence, indicating they were weak, had put themselves in danger by accepting Biden’s win and had to be gotten rid of. The President urged his supporters to “fight harder” against “bad people” and even suggested they were “allowed to go by very different rules.” He asked them to march to the Capitol, saying he’d go with them, and implied they could prevent an “illegitimate” Biden from being certified as the winner.[26]

His speech passes both a Brandenburg and Seditious Conspiracy test.  He’s being specific in action he directs; those actions are directed at the US Capitol (a place) performing the Constitutional duty of certifying the election (a function). The President directs his followers to go to that place and delay/hinder/obstruct the certification. But perhaps more important than the specificity test is the likelihood test.

This is the President of the United States, whose vast formal and informal powers I listed at the beginning of the article. And these are his most fervent and dedicated political supporters who undertook considerable expense to travel across the country and brave cold temperatures to hear him speak on the 6^th.  Indeed, some of his supporters, so incited, actually left during the President’s Rally and began marching on the Capitol. This imminent connection between speech and action ties together the incitement. It can be examined in a video catalog of every uploaded video to Parler, categorized by location and time. [27]  The videos are filled with shouts of the rioters themselves, clearly believing they are doing this on behalf of Trump.

A key part of the President’s defense against incitement is that he was “horrified” when the riot turned into insurrection. But contrary to that portrayal, President Trump, during the riot itself, made several Tweets and public statements that meet the threshold of incitement to riot in providing a rightness or right to commit violence. The smoking gun is this Tweet:

“These are the things and events that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long.”[28]

This clearly meets the threshold of incitement to riot by providing the rightness of action. The president doubled down in later public videos where he called the rioters “great patriots” and “very special people.”

The Senate could also call any number of witnesses to describe the President’s behavior during the riot. They could subpoena the records of any interaction between the President and those in the Capitol.

 

A President is not a Private Citizen, Representative, or Senator but the President of the United States

One argument is that the President, as any citizen of the United States, has a first amendment right to free speech. There is also an effort to compare his speech to those of Representatives and Senators. This is wrong on many levels. As indicated above, even a private citizen’s right to free speech is limited on incitement of violent and criminal acts. Even more so, the President is not being tried in his capacity as a private citizen because the Senate Trial is for Impeachment under his office as President.  As President, Trump possessed powers and was obligated under duties far different from any other private citizen, Representative, or Senator as described above.

Consider if, as a private citizen, a person believes that a specific building or property should be demolished to make way for a new development that would benefit them more personally. That’s a valid free speech opinion to have. However, if that person was under contract or had sworn an oath to “preserve, protect, and defend” that property, they would be in violation of that Oath if they made public statements to the contrary.

In this case, the property is the Constitution. President Trump sought its demolition, not outside of the office as a private citizen ranting on some cable news channel, but while serving as the President of the United States. Likewise, Amar points out that when someone becomes President and swear the Oath, they take upon them a duty greater than themselves or their personal beliefs. A president may have a personal belief that “all individuals of a certain race or religion are inferior or evil.” Still, if they acted upon those beliefs in open form as President, they would violate their Oath to the Constitution, which protects all people equally. [29]

Was the President derelict in his duties during the Insurrection?

The House Impeachment’s final charge, which the Senate must try, is a dereliction of duty. This is a separate and very powerful charge against the President that is far more black and white than either of the above charges. As indicated above in the Oath of office analysis, the President has an affirmative duty to “preserve, protect, and defend” the Constitution. The certification of Electoral College votes is a Constitutionally mandated procedure in the United States Capitol, and it clearly falls under the President’s Oath. And this duty must be performed to the “best of his ability.”

Consider a counterfactual thought experiment. Say that the President never attended the Rally, instead of staying at the White House. At the same time, his proxies delivered addresses that resulted in incitement to riot. Or assume that the President won the election. It was Democratic proxies urging Biden supporters to storm the Capitol and delay the certification. In neither case could the President possibly be guilty of incitement, as he wasn’t even there. But even so, if the President simply sat in his office and watched rioters storm the Capitol without taking action, he would be derelict in his duty and in violation of his Oath.

This isn’t complicated. Consider a Secret Service officer who has an affirmative duty to protect the President, but upon finding that rioters had breached the White House authorizes agents to use force, failed to call for reinforcements available to them through police and military units, or take other reasonable actions within their power to protect both the White House and the person of the President. That Secret Service officer would be derelict in their duty.

We know that the National Guard’s deployment was not authorized by the President but the Vice President. And there are allegations that the President refused, when asked, to deploy the National Guard or other measures, and instead watched TV and wandered the White House.

Again, to reiterate, the President is not obligated to do a bare minimum to preserve, protect, and defend the Constitution. But “to the best of his ability,” do so. And if the President failed in the most basic, reasonable, and prudent powers afforded to him in the vast power granted to him to protect the Capitol from the rioters, that even his own defense now characterizes as unlawful and violent; then he was derelict in that duty.

 

Guilty on All Counts, Probably Acquitted, Never to be Forgotten

Each of the charges above individually constitutes sufficient reason for the Senate to perform its duty to render judgment that these are impermissible behaviors of a President:

1. They shall not subvert or obstruct certifying Presidential election results.
2. They will not incite an insurrection.
3. They will not be derelict in their duty of responding to an insurrection.

All of these show a clear violation of the Oath of office requiring “faithful execution” and “to the best of their ability” the office’s affirmative duties, and beyond that, to preserve, protect and defend the Constitution.

However, the Constitution also sets up that the Impeachment Trial is itself inherently political. And thus, barring a procedural vote to allow Secret Ballot, there will probably not be a 2/3^rd’s majority of Senators willing to Convict the President. But we should not forget the actions of Trump, nor excuse similar actions by future Presidents. Because the ultimate power of the Constitution rests in the People and the elections we hold. And We the People must express judgment during these elections to the best of our ability.

Even if the Senate fails in its duty, we should not fail in ours.

SOURCES:

[1] https://www.congress.gov/bill/117th-congress/house-resolution/24/text

[2] https://ir.lawnet.fordham.edu/faculty_scholarship/1029/

[3] https://codes.findlaw.com/ga/title-21-elections/ga-code-sect-21-2-604.html

[4] https://www.law.cornell.edu/uscode/text/52/20511

[5] https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html

[6] https://youtu.be/Hn_9fQRiK9Q

[7] https://www.law.cornell.edu/uscode/text/18/2102

[8] https://www.law.cornell.edu/uscode/text/18/2331

[9] https://www.lawfareblog.com/felony-murder-and-storming-capitol

[10] https://www.law.cornell.edu/uscode/text/18/2383

[11] https://www.law.cornell.edu/uscode/text/10/253

[12]https://en.wikipedia.org/wiki/Shays%27_Rebellion

[13] https://en.wikipedia.org/wiki/Election_riot_of_1874

[14] https://www.lawfareblog.com/when-extremists-stormed-capitol-and-got-convicted-seditious-conspiracy

[15] https://casetext.com/case/united-states-v-lebron

[16] https://law.justia.com/cases/federal/appellate-courts/F2/888/1406/203861/

[17] https://www.newspapers.com/clip/69339503/judge-hands-20-years-to-bomber/

[18]https://www.courtlistener.com/recap/gov.uscourts.azd.1258007/gov.uscourts.azd.1258007.5.0.pdf

[19] https://www.politico.com/news/2021/01/13/trump-impeachment-mcconnell-conviction-459016

[20] https://www.axios.com/capitol-mob-joint-chiefs-condemn-0d19507c-e9a7-4ced-9e8e-770b7be3fbb9.html

[21] https://taskandpurpose.com/news/army-secretary-chief-2020-election-mike-flynn/

[22]https://founders.archives.gov/?q=insurrection&s=1211311113&r=1

[23]https://www.law.cornell.edu/wex/brandenburg_test

[24] https://supreme.justia.com/cases/federal/us/249/47/#tab-opinion-1928047

[25]https://www.law.cornell.edu/uscode/text/18/2384

[26]https://en.wikipedia.org/wiki/2021_storming_of_the_United_States_Capitol#%22Save_America%22_rally

[27] https://projects.propublica.org/parler-capitol-videos/

[28] https://thehill.com/opinion/white-house/537765-here-is-the-smoking-gun-evidence-to-back-impeachment-of-donald-trump

[29] https://www.wypr.org/post/trumps-2nd-impeachment-trial-preview-yale-laws-akhil-reed-amar