If incitement to insurrection and rebellion is to be considered “protected speech”… the republic is doomed.
By Anatole d’Ecotopia
The lines of argument have been made clear in the impending trial of Donald John Trump vs. United States of America. Neither the indictment nor the defense contain any surprises. In all likelihood, neither will the outcome.
The House impeachment managers have made several points extremely clear in their indictment, starting with the spurious argument that these proceedings are somehow “unconstitutional”. “There is no ‘January Exception’ to impeachment or any other provision of the Constitution,” reads the indictment. “A president must answer comprehensively for his conduct in office from his first day in office through his last.”
Also addressed is that the January 6 riot the indictee is accused of having brought about is merely the inevitable outcome of an effort, orchestrated over weeks, to discredit and undermine the election that rightfully removed the indictee from office. The Democratic brief accuses Trump of attempting “to extend his grip on power by fomenting violence against Congress,” and goes on to state that “His conduct resulted in more than five deaths and many more injuries…The Capitol was defiled. The line of succession was imperiled. America’s global reputation was damaged. For the first time in history, the transfer of presidential power was interrupted.”
The brief unequivocally states the obvious: “President Trump’s conduct offends everything that the Constitution stands for.”
Unsurprisingly, the brief for the defense relies heavily upon the argument that the impeachment trial is unconstitutional. It also states that the former president’s weeks-long campaign to discredit the election constitutes protected First Amendment speech, and that there can be a “reasonable doubt” as to the indictee’s intentions in whipping up the mob that then descended upon Congress.
The defense also takes exception to venerable Senator Patrick Leahy presiding over these proceedings, describing him as a “a partisan Senator who will purportedly also act as a juror while ruling on certain issues.” If this is a legitimate concern, then it is equally concerning that the jury for the accused includes far more “partisan” senators who should rightly be regarded as co-defendants. This includes, but is not limited to, Josh Hawley and Ted Cruz.
As to the issue of the indictee’s supposed First Amendment Right to have incited this tragedy, this falls well within the classic exception of shouting “fire” in a crowded theatre. If incitement to insurrection and rebellion is to be considered “protected speech”… the republic is doomed.
Regrettably, the outcome remains entirely and tragically predictable. The just and necessary punishment of the accused requires seventeen Republican Senators to place the good of the country above their own political ambitions, and match the courage of their ten House colleagues who voted to bring this indictment — knowing full well the wrath they would face from the easily-provoked deplorables among the accused’s supporters.
There is very little evidence that any such courage is forthcoming. But in the days and weeks before a collection of cowards set free this contemptible con man and would-be dictator to inflict further damage upon the country, it needs to be made as clear as possible to the entire country that their vote to acquit is no less a violation of their sacred oath to defend the Constitution… than the reckless and self-serving actions they are vindicating.
And when either the accused or those inspired by him inevitably provoke further violence, it also needs to be very, very clear just whose hands are stained with that blood… and just whose conscience bears the weight of destroying American Democracy.