The nutty drive for impeachment

 Jonathon Turley:

The author Franz Kafka once wrote, “My guiding principle is this. Guilt is never to be doubted.” Democrats suddenly appear close to adopting that standard into the Constitution as they prepare for a second impeachment of President Trump. With seeking his removal for incitement, Democrats would gut not only the impeachment standard but also free speech, all in a mad rush to remove Trump just days before his term ends.

Democrats are seeking to remove Trump on the basis of his remarks to supporters before the rioting at the Capitol. Like others, I condemned those remarks as he gave them, calling them reckless and wrong. I also opposed the challenges to electoral votes in Congress. But his address does not meet the definition for incitement under the criminal code. It would be viewed as protected speech by the Supreme Court.

When I testified in the impeachment hearings of Trump and Bill Clinton, I noted that an article of impeachment does not have to be based on any clear crime but that Congress has looked to the criminal code to weigh impeachment offenses. For this controversy now, any such comparison would dispel claims of criminal incitement. Despite broad and justified condemnation of his words, Trump never actually called for violence or riots. But he urged his supporters to march on the Capitol to raise their opposition to the certification of electoral votes and to back the recent challenges made by a few members of Congress. Trump told the crowd “to peacefully and patriotically make your voices be heard.”

These kinds of legal challenges have been made by Democrats in the past under the Electoral Count Act, and so Trump was pressing Republicans in Congress to join the effort on his behalf. He ended his remarks by saying a protest at the Capitol was meant to provide Republicans “the kind of pride and boldness that they need to take back our country.” He told the crowd, “Let us walk down Pennsylvania Avenue.” Moreover, marches are common across the country to protest actions by the government.

The legal standard for violent speech is found with Clarence Brandenburg versus Ohio. As a free speech advocate, I criticized that 1969 case and its dangerously vague standard. But even it would treat the remarks of Trump as protected under the First Amendment. With that case, the government is able to criminalize speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

There was no call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent, as the vast majority of the tens of thousands of protesters were not violent before the march, and most did not riot inside the Capitol. Like many violent protests in the last four years, criminal conduct was carried out by a smaller group of instigators. Capitol Police knew of the march but declined an offer from the National Guard since they did not view violence as likely.
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The hysteria of Speaker Pelosi and others at the actions of those who broke the law in this event is overwrought.  Not one of those who broke into the Capitol building was armed according to reports.  The only people who were armed were police,  An unarmed woman was shot by the police who likely made a mistake using lethal force.

If there was really intent to take control of the building it was an ill-prepared effort which suggests those who engaged in illegal acts were protesters who got out of hand.  The law can and will deal with that.  As Turley points out, Trump never suggested violence and spoke specifically of a peaceful protest. 

An assault by people trying to take over the building and take people as hostages would require significant firepower and hardened fighters.  Instead, there were people of all ages who appeared to be on a lark.  The US should punish them for breaking the law, but don't act like this was some kind of coup attempt.  The Democrats have tried two coup attempts since Trump was elected--The Russian collusion hoax and the Ukraine impeachment effort to cover up Biden's corruption.  They should not try a third coup attempt with an ill-advised impeachment effort.  It would just make them look like hysterical fools.