On impeachment, Part Four, the House’s Article

The single Article of Impeachment passed by the House states, in pertinent part:

INCITEMENT OF INSURRECTION

On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.

Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that “we won this election, and we won it by a landslide”. He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: “if you don’t fight like hell you’re not going to have a country anymore”. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.

President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.

(Emphasis added)

I’ve argued that Trump’s statements about the election should not be considered grounds for impeachment. A decent regard for free speech counsels strongly against impeaching a president for such statements.

However, a president who advocates insurrectionary conduct should be impeached, removed, and disqualified from holding office in the future. Did Trump do that?

The Article quotes only one statement that might be construed as urging insurrectionary or violent conduct. That statement is, “if you don’t fight like hell you’re not going to have a country anymore.”

But the word “fight” is used all the time by politicians and advocates on both sides of the political spectrum. It is almost never construed literally.

The drafters of the Article recognize this when they say that “in context,” Trump’s statement “encouraged—and foreseeably resulted in—lawless action.” It’s become clear, however, that Trump’s statement did not result in the lawless action at the Capitol. The Washington Post recently reported that the riot was planned by “militia” leaders well beforehand.

There’s still the question of whether Trump intended by his “fight like hell” statement to encourage a riot or participation in one. It’s possible that he did. In my view, however, there is a strong presumption against impeaching a president and an even stronger one against impeaching a president in a hurry. (A more deliberative process might have revealed that the riot was planned ahead and might have shed light on the president’s intent.) I don’t think the statement quoted in the Article overcomes that presumption.

The day of the riot, I argued that Trump helped incite the rioting at the Capitol. I relied on a tweet by Trump from before the gathering on January 6. He said:

I hope the Democrats, and even more importantly, the weak and ineffective RINO section of the Republican Party, are looking at the thousands of people pouring into D.C. They won’t stand for a landslide election victory to be stolen.

It seemed to me that Trump was signaling to the people pouring into D.C. that they should not just protest, but should act in ways that made it clear they won’t stand for outcome of the election. Thus, his tweet can be construed as an invitation to an insurrection in some form. Indeed, I think that’s the most reasonable way to construe it.

It’s not the only way, however. Trump might have been calling for more than traditional protesting but less than violence or the kind of disruption of the House and Senate that might be deemed an insurrection.

If one agrees with me that there should be a strong presumption against impeaching a president, I think Trump’s tweet falls short of grounds for impeachment. If one disagrees with me about presumptions, then there’s a good case for impeachment.

Accordingly, I respect the votes of the ten GOP House members who backed the “insurrection” Article of impeachment. However, I would not have voted for it.

Finally, what about Trump’s phone call with Raffensperger? The first thing to say is that it has nothing to do with inciting an insurrection.

As to “finding” votes to switch the outcome in Georgia, it’s clear from the phone call that Trump believed he won the state by hundreds of thousands of votes. However, he told Raffensperger that he only needed to find around 11,000 of those votes to flip the result. In other words, Trump believed the votes he needed, and many more, were there to be found. “Find” meant find, not fraudulently produce.

What about the “threat” to Raffesnperger? Here’s what Trump told him:

You know what they did and you’re not reporting it. You know, that’s a criminal offence. And you know, you can’t let that happen. That’s a big risk to you and to Ryan [Germany], your lawyer. That’s a big risk.

Trump wasn’t threatening to prosecute Raffensperger, something the Georgia Secretary knew Trump would lack the power to do, in any case. He seemed to be claiming, absurdly, that Raffensperger might be guilty of a crime.

Had Trump’s statement been credible, it might have been intimidating. And there’s an argument that trying to intimidate an election official is an impeachable offense.

However, I doubt that erroneously telling a state election official that he’s guilty of a crime for not supporting a candidate’s position on the election outcome meets the “high crimes and misdemeanors” standard of the Constitution. And, as noted, it was not insurrectionary.

I conclude that there’s a case in the Article for voting to impeach Trump, but that the better view is he shouldn’t have been impeached based on that Article.

In the final post I’ve planned for this series, I will address the question of whether Trump should be impeached for comments he made about what Vice President Pence should do regarding the electoral count.

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