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As thousands of people dressed in Donald Trump hats and waving Trump flags stormed the US Capitol last Wednesday, it was Trump’s own words just before the riot urging them to ‘fight back’ that are accused of the violence that followed.
According to the House resolution establishing the article of impeachment that the US House of Representatives is expected to debate this week, it is Trump’s speech at the Ellipse, right in front of the White House, that is proof of their claim. that Trump “have engaged in serious crimes and misdemeanors by inciting violence against the Government of the United States.”
The resolution states that “shortly before the joint session” to count the electoral college votes and certify the victory of President-elect Joe Biden “began, President Trump … reiterated false claims that ‘we won this election and we won it by a landslide ‘”.
“He also voluntarily made statements which, in context, encouraged – and presumably resulted – in lawless actions on Capitol Hill, such as:” If you don’t fight like hell, you will have no more country. “,” the resolution continues.
“As prompted by President Trump, the members of the crowd he addressed … illegally violated and vandalized the Capitol, injured and killed law enforcement personnel, threatened members of Congress, vice -President and staff of Congress, and engaged in other acts of violence, murder and destruction. and seditious acts. “
The House impeachment effort comes down to Trump’s declaration of “if you don’t fight like hell, you won’t have a country.”
Charges against legal guilt
The impeachment process is inherently political, not legal, which means that while members of Congress generally refer to legal language when considering whether a president has committed “serious crimes and misdemeanors,” it is not necessary that Congress needs to prove legally that the accused is guilty of these crimes, although in general there is a great deal of effort to gather as much evidence as possible.
Because the process is politically motivated, it is therefore motivated by American sentiment towards the accused president and the fact that a majority of Americans agree with the accusations. In this case, a poll released on Sunday is the first indication that Trump’s impeachment may not be a very controversial move.
In the ABC News / Ipsos poll, 67% of Americans said Trump deserved a lot or a fair bit of blame for the riot, including 69% of independents but only 31% of Republicans.
The same poll suggests that 56% of Americans believe Trump should be removed from office before his term ends on January 20.
This is a significant difference from when Congress impeached but failed to remove Trump from office in 2019-2020. Americans were divided throughout the process last year, with a clear majority never materializing to punish Trump.
The difference in opinion among Americans is a likely indicator that the process this time around could move faster with much less controversy. Certainly, the political winds will give MPs who vote to impeach meaningful political cover against those who argue this process is happening too quickly, avoiding the traditional lengthy inquiries and deliberations accorded to previous successful impeachment efforts.
But just because Congress declares Trump guilty of “inciting” the riot doesn’t mean that he is guilty under the law. Congressional actions could result in Trump’s impeachment or prevent him from returning to office, but that falls short of the legal bar to hold him accountable for the illegal behavior and destruction of the Capitol caused by the rioters.
And that legal bar is quite high, according to experts.
Former District of Columbia Assistant Attorney General Jeffrey Scott Shapiro, who was successful – and unsuccessful – in convicting protesters for incitement, argues that Trump did not violate any incitement laws with his speech.
Shapiro, who is currently appointed by Trump to the US Agency for the World Media, pointed out in a Wall Street Journal editorial on Sunday: “In the District of Columbia, it is a crime ‘to act intentionally or recklessly in this way. manner to cause another person to have a reasonable fear “and” to incite or provoke violence where there is a likelihood of such violence occurring “.”
In addition to the “struggle” language cited by the House resolution, Shapiro mentions that another of Trump’s lines in his speech is presented as proof of incitement: “We will cheer on the brave Senators, Members of Congress and women, and we’re probably not going to encourage some of them that much. Because you will never take back our country with weakness. You have to show strength and be strong. “
But Shapiro also points out that Trump said, “I know everyone here is going to be marching to the Capitol building soon to have your voice heard peacefully and patriotically.
Shapiro argues: “Critics of the president want him to be accused of inflaming the emotions of angry Americans. That alone does not satisfy the elements of a criminal offense, and therefore, his speech is constitutionally protected which members of Congress have sworn to support and defend.
Andrew Koppelman, professor of constitutional law at Northwestern University in Evanston, Ill., Told the Associated Press news agency that it would be difficult to prove that Trump intended violence to ensue on Capitol Hill, given legal precedents.
Koppelman said Trump and his lawyer Rudy Giuliani’s use of the word ‘struggle’ in previous remarks at the rally sounded more like a turn of phrase than an incitement to violence, the news agency reported AP.
“It’s like the word struggle. It’s often used as a metaphor. “Senator X is a fighter. He will fight for you, ”Koppelman told the AP news agency.
After Biden is sworn in next week, his fellow Democrats will call on his Justice Department to legally prosecute Trump, regardless of the difficulty prosecutors are likely to encounter in securing an inducement to stay charge.
Biden, who declined to support the Congressional Democrats’ impeachment decision, said he was more interested in other issues than trying to punish Trump for the riot or the litany of other transgressions some Democrats are pushing for Trump to be punished.
“I’m focusing on the virus, the vaccine and economic growth,” Biden said on Friday.
Notably, this was said before polls showed that a majority of Americans bore responsibility for the riot with Trump. But if future polls confirm this conclusion, the political pressure on Biden to push for legal action is likely to intensify.
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