I don’t know if this matters to anyone at this point in the discussion, but POTUS does not have to be guilty of a crime to be impeached. There is a lot of discussion in the media, both liberal and conservative, about whether Trump’s words “incited” the insurrection. That is a legal question. I’ve spent some time this last week researching “incitement” jurisprudence and in my view, Trump did not as a legal matter “incite” the insurrection.
Everyone on CNN says he did incite it, most everyone on Fox says he did not. I don’t know what MSNBC or Newsmax says because I can’t control my gag reflex long enough to watch either network, but I think I can safely guess their respective positions.
This is a red herring though. The grounds for impeachment are far more nebulous and subjective than legal standards within the court system. Of the statements I have read, Liz Cheney has presented the basis for impeachment in the way most consistent with the historical and congressional treatment of the analysis which I will get to in a minute.
Congressionally established grounds for impeachment include “a broad variety of conduct by officers that is both serious and incompatible with the duties of the office.”
The legal standard for incitement is not wholly irrelevant because if you establish it, it strengthens the case. But in my studied view it does not apply. Nor is it necessary.
The basis for impeachment is not solely the insurrection and Trump’s role in it. Rather it includes deliberately and knowingly lying to the American public about election fraud. This is different than him filing lawsuits, which is peaceful, constitutional and the proper way to address these issues. I always agreed with McConnell’s statements that POTUS is completely within his rights to pursue his grievances through legal means.
But that is different than the accompanying rhetoric about “massive widespread fraud.” His lawsuits did not even allege fraud, yet this was his persistent public message to provoke outrage and inflame passions. This is calculated and incompatible with the purposes of the office because it seeks to undermine public trust in democracy.
Next piece of evidence is his multiple phone calls asking Georgia officials to select specific investigators willing to “find the fraud” and worse to “find” the exact amount of votes he needed to take the state, accompanied by threats to those officials to do this for him. That is inconsistent with the purposes of the office and not only undermines public trust in democracy, but in fact is a patent effort to directly and illegally overturn a presidential election behind the scenes. That is an attempted coup, albeit a fraudulent rather than violent one. But that didn’t work.
So the next phase was to pressure Mike Pence to do something that is illegal and unconstitutional, which was to refuse to accept and tally the certified election results. And on the day it happened, attempted to use duress against Pence by rallying his crowd around the need for Mike Pence to do this illegal thing. Que “kill Mike Pence” chants. Those were the next two steps taken to effect a non-violent coup to subvert the will of the people. Also an impeachable offense under the standard established by Congress nearly 50 years ago.
Then we have the insurrection itself. While there is little doubt Trump’s statements for months and on that day inflamed passions, it is highly unlikely that it constitutes incitement. Despite this, the insurrection itself is the focal point of impeachment and understandably so, but I hope they do not conflate legal incitement with impeachment.
Because the last basis for impeachment - conduct incompatible the duties of the office - is Trump’s conduct during and after the insurrection. Liz Cheney’s statement includes this and it should be a meaningful focal point of the process:
“The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.“
This, to me, is the most easily proven and most obvious basis for impeachment. Even ignoring the multiple reports from inside the WH that Trump watched the insurrection with “delight” and that he was “confused” as to why his staff did not have the same reaction, we know he sat back for hours and took no action to stop it. And he continued to tweet threats (“this is what happens when you try to steal an election”). Which links back to all of his prior conduct in convincing his followers that no other choices remained to “save Democracy.” Ultimately, Biden and Trump’s legal team had to implore him to make a public statement and when he did it was with a wink and a nod.
Ignore whether he incited the insurrection. Collectively and individually the described acts are impeachable offenses. They constitute a months long, multi-pronged effort to undermine public faith in democracy without evidence, and ultimately to overturn the will of the people through unconstitutional means.
These actions are grossly incompatible with the weighty duties and obligations a sitting POTUS owes to this nation, and he should be impeached.
Once a pickle, never a cucumber again.