In making their case to the Senate, the House impeachment managers are focusing on the Capitol riot itself rather than on Donald Trump’s responsibility, if any, for it. Yesterday, Senators watched video of a mob going after Mike Pence, Nancy Pelosi, and others, injuring police officers in the process.
The video seems to have made an impression on Republican Senators, most of whom, I’m sure, were already disgusted by what happened at the Capitol. If the House managers could show that Trump is culpable for the rioting — that he advocated or desired it — they could probably win additional Republicans over. Perhaps they could even approach the two-thirds majority required for conviction.
But showing video of the rioting won’t accomplish this. Nor is it likely to sway many Americans. The public, I believe, has moved past the rioting even if, understandably, those who experienced it directly have not.
Where is the evidence that Trump advocated or desired the rioting that took place? It’s not in the House impeachment article. That document focuses solely on Trump’s claims that he won the election and won it in a landslide — claims he had an absolute right in a free country to voice — and his statement that Americans need to “fight like hell” to keep their country.
Is there a member of the Senate who has not urged supporters to “fight” vigorously for a cause or on his/her behalf? I doubt it.
The impeachment article relies on the “context” of Trump’s statement about fighting. The reliance is understandable, given the weak to nonexistent support Trump’s actual statement provides. But when scrutinized, the context further weakens the House managers’ argument.
Charles Kesler demonstrates this in an excellent article about impeachment and the future of Trumpism. Kesler focuses on the full speech Trump delivered on the fateful day. He writes:
If Trump’s speech has a political target, it’s the “weak Republicans” who acquiesce in election fraud and will not fight in the trenches alongside him—the “Liz Cheneys of the world,” as he calls them. . . “We’ve got to get rid of them,” he says.
He specifies how that should be done: “we have to ‘primary’ the hell out of the ones that don’t fight. You primary them.” Later he adds, “in a year from now, you’re going to start working on Congress and we’ve to get rid of the weak congresspeople, the ones that aren’t any good.” A year from now means as the 2022 election cycle gears up. His incitement, so to speak, is to oppose the weak Republicans by challenging them in the normal process of American primary elections.
In the meantime, he calls on the audience to “walk down to the Capitol” in order to “cheer on our brave senators and congressmen and -women, and we’re probably not going to be cheering so much for some of them, because you’ll never take back your country with weakness. You have to show strength and you have to be strong.” He adds: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” It isn’t sedition to “peacefully and patriotically” protest, to cheer on brave legislators and boo (or in some cases, buck up with “pride and boldness”) the weak ones.
And what if, as Trump hints is likely, the protestors are ignored and Biden receives a majority of the electoral votes and becomes president, what then? “We’re going to see whether or not we have great and courageous leaders or whether or not we have leaders that should be ashamed of themselves throughout history, throughout eternity.” The penalty he points to is eventual public and private obloquy. “If they do the wrong thing, we should never, ever forget that they did, never forget. We should never, ever forget.” Despite his constant, characteristic, and exaggerated appeals to strength versus weakness, his ultimate appeal is not so much to might but to a form of right, based not merely in history but in “eternity.” To know you have acted shamefully is the worst penalty, he advises, or ought to be, which is where public opinion—and the possibility of later electoral defeat—comes to bear as an external sanction against the otherwise shameless.
This glimpse suggests how far Trump’s speech is from being a call to substitute might for right by inciting his partisans to riot. In fact, the chief business of the speech is a long, informative rehearsal of the facts behind the fraud he alleges took place in seven states. Though it has humorous moments, the statement is pretty dry, and he even apologizes for that. He wraps it up by calling for a series of changes in election laws to require voter ID and to prohibit ballot harvesting, unsecured drop boxes, universal unsolicited mail-in balloting, and the like. It surely didn’t sound like a rallying cry to trash the Capitol.
The House’s article of impeachment quotes from the conclusion of this long section and of the address: “And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore.” But the context proves that the fight Trump was calling for was political and legal, not criminal. Rather than seeking to obstruct the democratic process, he was urging his followers to use it to the fullest extent of the law. In my judgment, there isn’t a word of “incitement of insurrection” in the speech.
Some of the things Trump said in earlier days can be construed as incitement. But the focus should be on Trump’s speech the day of. That’s the definitive version of what Trump was calling for and wanted.
As Kesler says, there is nothing in the speech that can reasonably be construed as inciting an insurrection.