Dr. Martin Blank
I am closely following the historic second impeachment of former President Donald Trump. Following are key points to keep in mind as the United State Senate conducts its trial of the former president.
A Political Process
It is important to understand that an impeachment trial is not a criminal trial, and that the standards for a criminal trial, such as “beyond a reasonable doubt,” are not required. Further, an impeachment trial is a political process, not a judicial process. The Senate, not the court, has sole authority over the trial, and a contested outcome, by any party, will not be reviewed by the court.
Articles of Impeachment
The Articles of Impeachment drafted by the House of Representatives state that President Trump “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” The articles charge him with “Incitement of Insurrection.” Though the articles discuss other acts by President Trump prior to his speech at the Ellipse, the decision to convict should rest solely on the charge of incitement of insurrection.
Incitement of Insurrection
Historically, incitement cases often reached the Supreme Court because speakers claimed that a law prohibiting their speech was unconstitutional and violated their First Amendment rights. The Supreme Court developed a test to determine whether speech constituted incitement, and whether the law restricting that speech was unconstitutional. That test is called the Brandenburg Test and it has three elements that must be satisfied:
(1) The speech must be directed to inciting imminent lawless action;
(2) The speech must be likely to incite such action; and
(3) The speaker must have intended the lawless action to occur.
Though President Trump’s impeachment trial does not involve a First Amendment issue, the Brandenburg Test is useful in this circumstance and will guide my analysis.
Analysis
The first element of the Brandenburg test focuses on the imminency of the lawless action. To satisfy the imminency element, it is not enough that President Trump advocated the invalidation of the Electoral College certification. President Trump’s words must have led the crowd at the Ellipse to immediately march to the Capitol and act. Since we know that some of the crowd did immediately march to the Capitol, we know the first element is satisfied.
The second element focuses on whether President Trump’s words were likely to cause the crowd at the Ellipse to act in violence. With the history of violence recently exercised at state capitols in President Trump’s name, it would seem likely that the crowd at the Ellipse would also act violently. The second element is satisfied.
The third element is the key. Did President Trump intend to incite the crowd to violently breach the Capitol, viciously attack law enforcement officers, kill at least one officer, force members of Congress to take protective measures, and interfere with the Electoral College certification? The answer is no.
Based on my viewing of President Trump’s speech, and my reading of the text, President Trump did not intend that outcome. His words calling the crowd to action were intermixed with random ideas and grievances. The speech was disorganized with no crescendo to a compelling directive.
President Trump did not intend for the crowd to act the way it did.
Conclusion
It is not enough to disapprove of President Trump or to be disgusted by the attack on the Capitol. Unless President Trump intended for the crowd to violently attack the Capitol, President Trump should not be convicted in his Senate impeachment trial.
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Dr. Martin Blank is a retired colonel in the United States Army Reserve. He lives in Swan Creek, Michigan.
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