Faculty Commentary

Incitement, Insurrection and Impeachment

U.S. Capitol building in black and white

The impeachment trial of Donald Trump has been driven by what is in one sense a simple, seamless narrative – months and months of false statements about election fraud fueled the anger and imagination of the soon-to-be insurrectionists, and the January 6 speech with its exhortations to “fight” were inciting acts. Yet after viewing the videos and accounts of the horrors that occurred, Ted Cruz pronounced that “the language from the President doesn’t come close to meeting the legal standard for incitement. Can that possibly be the case?

The answer is “no,” certainly not in the impeachment context. There is a federal criminal offense of inciting a riot, which defines the conduct as “includ[ing], but…not limited to, urging or instigating other persons to riot…”  The law does not reach “mere oral or written advocacy of ideas or expression of belief…”  18 USCS § 2102. Yet even in a criminal court, there would be a valid basis to pursue a conviction.

The audience was known to be volatile and angry; Trump had a history of encouraging and lauding violence; he wanted the count of electoral votes stopped, something he had repeatedly tried to do; and that history and his choice of words could easily lead a reasonable juror to conclude that Mr. Trump wanted violence to erupt. Indeed, his silence across the afternoon as the riot continued, and his encouraging words and refusal to intervene, are strong confirmation that what occurred is what the then-President intended.

So Senator Cruz is wrong unless, viewing that offense through his own lens as a juror, he means that he, as an individual, is not convinced of what Mr. Trump intended. But what was intended may itself be the wrong question.

The impeachment is not premised on whether a criminal law was broken. And a President – or any Government official – may be impeached for intentional or reckless behavior, even if no criminal law is broken.

The Article of Impeachment charges Donald J. Trump with making “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.’” That is what occurred.

As importantly, the impeachment count is not confined to what was said before the Capital was stormed. Once rioters were inside the Capital, Trump retweeted his speech with no comment about the insurrection. Much more dangerous was his next act – after being told by Senator Tuberville that Pence had to be led to safety, Trump tweeted an attack on the Vice President. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution[.]” The rioters did not know Pence was being whisked away, and vilifying him could only encourage – and foreseeably result in – more rioting and violence.

There is a final act of Mr. Trump that clearly meets the threshold for incitement – and that is the act of silence. Just as religions recognize a “sin of omission,” so too does the law. Implored to speak out and call on the rioters to desist, Mr. Trump first said/tweeted nothing; he then spoke in glowing terms of (and to) those who were engaged in rioting. Those who have a duty to act – which the Constitution gives to the President – are liable when their inaction leads directly to harm.

The Article of Impeachment could have also sought removal because of a dereliction of duty. And a broader investigation – specifically to find out what information about the crowd and the plans of demonstrators was included in Presidential briefings – would only strengthen the incitement case. But on its own terms – and with clear and overwhelming proof – the Article of Impeachment is clearly substantiated. What “doesn’t come close” is the claim of Mr. Cruz or others that the proof is not there.

Questions about this post? Drop us a line at lawcomm@temple.edu.