by Robert Romano
House Democrats are proceeding apace with their plans to impeach President Donald Trump before his term ends on Jan. 20 when Joe Biden will be sworn in as the 46th President of the United States, accusing Trump of inciting insurrection after the storming of the U.S. Capitol on Jan. 6 following the Save America Rally he spoke at challenging the outcome of the 2020 election.
It will tear the country apart again, and President-elect Joe Biden can stop it with a single phone call.
The single article of impeachment states the President “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.”
The riot that followed sadly resulted in five deaths, including Capitol Hill police officer Brian D. Sicknick who died after sustaining injuries at the riot and Ashli Babbitt who was shot by a Capitol Hill police officer in the Capitol.
But President Trump never incited anyone. In fact, he urged everyone to be peaceful at the rally: “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
After the violence began, Trump on Twitter urged his followers to stop immediately: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”
So, right off the bat, once again, House Democrats lack a real crime with which to prosecute Trump. What’s more, even if one thought the President was irresponsible for holding the rally given the outcome, the speech the President gave is most certainly covered by the First Amendment — he had every right to give that speech.
Constitutional law attorney Alan Dershowitz told Maria Bartiromo on Fox News on Jan. 10: “What I worry about deeply is the impact of the impeachment on the First Amendment. For a hundred years, the Supreme Court and other courts have struggled to develop a jurisprudence which distinguishes between advocacy and incitement. In the leading case of Brandenburg v. Ohio, a unanimous decision, the Supreme Court basically said that what President Trump said on Wednesday, as much as I disapprove of it, and many people disapprove of it on its merits, is protected by the First Amendment of the Constitution.”
Dershowitz added, “It comes with a core [protection of] political speech, and to impeach a President for having exercised his First Amendment rights would be so dangerous to the Constitution it would lie around like a loaded weapon ready to be used by either party against the other party, and that’s not what impeachment or the 25th Amendment were intended to be.”
In Brandenburg v. Ohio in 1969, the Supreme Court found “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
In that case, mere advocacy of violence or lawless action was not enough to sustain a conviction.
And vice versa, in order to charge President Trump, or anyone for that matter, with a crime — impeachment under Article II, Section states “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” — there would have had to have been bare minimum a direct advocacy of violence as well as the violence. There wasn’t.
It cannot be one, or the other, there has to be both.
Meaning, agree or disagree with President Trump’s speech where he called for Vice President Mike Pence to only recognize alternate slates of electors for the Electoral College on Jan. 6 in favor of Trump, and for Congress to object electors for Joe Biden in Arizona, Pennsylvania, Michigan, Georgia, Wisconsin and Nevada, he explicitly stated that he expected protesters to remain “peaceful.” Once again, he’d have to be found not guilty if it were ever to go to trial.
And that’s just on the constitutional merits.
If, overall, a speech questioning the outcome of an election is sedition or inciting insurrection punishable under the law, then surely almost all of us are now guilty of it by now and we should all turn ourselves into the FBI.
From 2016 all the way through much of 2019, Democrats sold the falsehood that President Trump and his campaign had conspired with Russia to steal the 2016 election against Hillary Clinton.
It led to a top secret Justice Department investigation that turned out to be nothing more than a wild goose chase, with none other than Special Counsel Robert Mueller in his report and in his July 24 testimony stating, “the investigation did not establish that members of the Trump campaign conspired with the Russian government in its election interference activities. We did not address collusion, which is not a legal term; rather we focused on whether the evidence was sufficient to charge any member of the campaign with taking part in a criminal conspiracy, and there was not.”
In the interim, the investigation most assuredly led to political violence, including by James Hodgkinson, the shooter at the Republican Congressional baseball practice in Alexandria, Va. In 2017, who almost killed House Minority Whip Steve Scalise (R-La.), who believed that Trump and all Republicans were Russian stooges who had stolen the 2016 election.
Of course, nobody but the late Hodgkinson, who was shot dead at the scene, was criminally responsible for the shooting, no matter how much the false allegations against Trump and his campaign drove Hodgkinson to madness, as tempting as it might be to blame others.
The country has born about as much as it can take. President Trump will be leaving office on Jan. 20. That should be enough. And if he is unwisely removed before Jan. 20 — or tried after — it would once again disenfranchise tens of millions of Americans, tear the country apart and imperil the Union with another civil war.
We’re sitting on a powder keg, President-elect Biden. Please don’t light the fuse.
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Robert Romano is the Vice President of Public Policy at Americans for Limited Government.