53 thoughts on “The Past and Future of Incitement”

    1. Interesting piece in The Hill.

      The insurrection attempt by his “stand by” gangs followed by the unrepentant adoration of the disgraced president by both his supporters and fearful Congressmen is the real Fifth Avenue shooting.

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  2. Interesting, perhaps, but not relevant to the looming “trial.”
    An impeachment by the House and subsequent trial by the Senate is NOT a criminal proceeding. If it were a criminal trial then Trump might be acquitted based on diminished capacity. His lawyers could argue with considerable evidence that he is simply too stupid to understand the predictable results of his inciteful rhetoric.

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    1. RE: “Interesting, perhaps, but not relevant to the looming ‘trial.'”

      Do you think I posted the story because of the impeachment?

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      1. The subject would not even have come up without the efforts to overthrow the newly elected government.

        What was the purpose of scheduling a rally and saying it will be “wild” unless it was to force Congress to act illegally on January 6. Just standing hundreds of yards from the Capitol and cheering would not work obviously. There were not enough Congressmen to overturn any electoral results. Pence’s role was more ceremonial than screening.

        The rally would have been pointless if they just gathered and chanted. Plus there is no way the president could not have known that hundreds of gang members were ready to attack. Intelligence had been tracking the online organizing for weeks. The president is responsible for the safety and security of our nation, so if he ignored or chose not to be briefed, that is malfeasance on a grand scale.

        Finally, words from the president with a supposed 80 million followers are a lot more influential than a boy in bed with a laptop. With authority comes great responsibility. And at that level, to exhort 80 million to believe fraud and then to gather for “trial by combat” has much more of an incitement value than political discourse.

        So, yes, we have to be careful when defining limits on free speech. But we can’t let that caution result in bloodshed and violence with the idea of overthrowing the structure of our government.

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        1. RE: “The subject would not even have come up without the efforts to overthrow the newly elected government.”

          Not necessarily. I’ve written about mens rea here a number of times, because I consider it immoral to accuse others of crimes when you cannot prove they had criminal intent.

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          1. If you killed someone with a gun because you were careless in handling it, you are still guilty of negligent homicide or involuntary manslaughter. Intent or no intent.

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        1. Ya think? SMH
          For some reason this jumped into my head:

          Synonyms & Antonyms for tiresome
          Synonyms
          arid, boring, colorless, drab, dreary, drudging, dry, dull, dusty, flat, heavy, ho-hum, humdrum, jading, jejune, leaden, mind-numbing, monochromatic, monotonous, numbing, old, pedestrian, ponderous, slow, stale, stodgy, stuffy, stupid, tame, tedious, tiring, uninteresting, wearisome, weary, wearying
          Antonyms
          absorbing, engaging, engrossing, gripping, interesting, intriguing, involving, riveting

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    2. It is either a trial, in which the law and due process apply, or it is a political act referred to as a Bill of Attainder, which is prohibited by the Constitution.

      Either way, Trump prevails. The legal standard for incitement cannot be met. so if it is a trial, the 1st Amendment applies. and if not, Article I section 9 does.

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      2. “It is either a trial, in which the law and due process apply, or it is a political act referred to as a Bill of Attainder, which is prohibited by the Constitution.

        LOL!

        You are cocksure about things you do not understand. I will give you that. But, you have no excuse for such ignorance. I have personally set you straight a number of times about what a Bill of Attainder is and how it is different from the Constitutionally prescribed step of a Senate trial to confirm or reject an Impeachment.

        Even a blind pig finds an acorn now and again. You are correct that it is a “political act” to impeach and remove a President. That is how it was designed. That is why it is in the hands of the Legislative and not the Judicial branch. The founders foresaw that the day would come when someone completely unsuited to the office of President would need to be removed from it. That is why the term “High Crimes and Misdemeanors” is not further defined. The word “misdemeanors” literally meant “bad behaviors.”

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          1. Rubbish.
            Trump was Impeached WHILE IN OFFICE. The trial must follow as directed by the Constitution. For this to be something like a Bill of Attainder the Impeachment would have to be against a private citizen. It wasn’t. Bills of attainder and Impeachment are separate matters treated separately in the Constitution.

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          2. Trump is not in office now.

            Though the House did impeach Trump while still in office, albeit with no due process, or even debate, he is not in office now, and a legislative trial by the Senate is exactly what a Bill of Attainder is.

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          4. Due process?

            You are really confused or do you just enjoy repeating hollow talking points that sound truthy?

            There are exactly ZERO requirements for “due process” in an Impeachment. It is not a criminal matter. No criminal penalties are involved. There are no judges or rules to follow. There are only political consequences if the process is seen to be unwarranted or unfair. In this case where the President incited insurrection, violence and death there is not a lot of feeling among patriotic Americans of both parties that the Impeachment was partisan overreach.

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          5. You keep making my point.

            Senators could vote to convict Trump with no testimony, no right to confront or present witnesses, and the jurors all have a stake in the outcome.

            Democrats fear his effectiveness in campaigning against them and Republicans don’t want him messing up their campaigns.

            Imagine a popular wedding photographer being subject to a vote of his competitors on his business license renewal.

            That is why political trials of private citizens is prohibited.

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          6. …”the jurors all have a stake in the outcome.”

            They are also witnesses. And in a couple of cases complicit to the charges. ( Mr. Cruz, Mr. Hawley, Mr. Johnson come to mind just off the top of my head.)

            “That is why political trials of private citizens is prohibited”

            Too bad he wasn’t a private citizen when he was impeached. then you would have a leg to stand on. Right now you are trying to have it both ways. And lucky for you I just bought a brand new bottle of spicy mustard for your pretzel logic.

            https://theweek.com/cartoons/965617/political-cartoon-trump-impeachment-gop-defense

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      3. Wrong. Impeachment bears no punishment, fines or incarceration. It is strictly an instrument to remove an office holder who is either breaking laws or is incompetent among other reasons. High crimes is all about abuse of office. Use of the bully pulpit of POTUS to gather heavily armed, armored and quasi trained gangs for a rally shows intent in my opinion. Then if, and only if, the judicial system picks up the case after removal from office can the office holder be tried with all the protections of the Bill of Rights.

        Trump actively and with intent tried to usurp the Congressionally prescribed and Constitutionally described delivery of electoral results as ascertained by states.

        The insurrection was a last ditch effort to force an illegal act by his own VP. The rally was scheduled specifically for that reason. Be there and be “wild” was not a call for costumes and free beer. “Trial by combat” was not a Medieval reenactment of jousting skills. “Fight …or you will lose your country” was not about the board game “Risk”. And “stand by” was not part of a CW song.

        At the very least, Trump broke his oath of office to uphold the Constitution in an effort to overturn the election.

        If Trump is not convicted, we can expect all future losers to resort to violence.

        If that is what you want, you might just get it.

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          1. He is still legally qualified for the office he is unfit for. That makes the Senate trial relevant and necessary. The Democrats took a political step by impeaching. It is now the turn of the Republicans to take a stand for or against sedition.

            And, as you know but simply ignore, there are very clear precedents for carrying on the impeachment after the office holder has left the office. Where the Constitution is silent – such as whether the trial can proceed after the impeached leaves office – precedent is decisive.

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        2. “If Trump is not convicted, we can expect all future losers to resort to violence.”

          If he is, we can expect future winners of Congressional majorities to imprison their opponents, or at least bar them from future participation in elections.

          That is a Bill of Attainder

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          1. “imprison their opponents?”
            More rubbish. We are a democracy and a party abuses its power at great political risk. And, I would remind you that it was a political decision BY THE REPUBLICANS to delay the Senate trial. Everyone knows the relevant facts first hand. There should have been Senate trial in early January. And a vote up or down. If there is any partisan bullshit going on, it is by the GOP.

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          2. And the trial is still too soon for an adequate defense to be planned.

            Of course, in a political trial by the legislature, guilt or innocence don’t matter, political faction is all that counts.

            Which is why Bills of Attainder are pprohibitied.

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          3. Guilt or innocence?
            Again your mind is a muddle. This is not a criminal trial. Guilt or innocence in a criminal sense are not relevant concepts.

            I will stipulate that in a criminal trial Trump is such a moron that he might well be acquitted based on diminished capacity to understand the consequences of his rhetoric.

            But that is not the question facing the Senate. There are no facts in dispute. The only question – Is it acceptable for the person holding the office of the Presidency to use such rhetoric and spread such falsehoods that incite insurrection? THAT is what happened and it matters not a whit how stupid Trump is or what he thought would follow.

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          4. I do think that future presidents who engage gangs to assault Congress so he could get his way should face consequences, don’t you?

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          5. Not the point.

            If we make impeachment a purely political act, unconnected to criminal guilt or innocence, then it can be used preemptively to exclude politicians who are simply likely to defeat the current majority.

            When the GOP takes both houses of Congress in 2022, and what Biden has done on energy already makes that a foregone conclusion, they could just impeach Kamala to take her out of the game for 2024.

            It’s not a road you want to start down.

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          6. It is not unconnected to criminal conduct, but some of the reasons allowing impeachment are specifically related to holding office.

            High crimes is just that.

            You fret yet how many impeachment’s have taken place in the US since founding?

            Extorting a head state and sending a mob of violent people to assault Congressmen and his own VP should not be acceptable in the world of decent and reasonable folks.

            Yet, you dismiss all that as business as usual for your hero. And, oddly, there should be no accountability. I get the feeling your hatred of Democrats and democratic participation in government has blinded you.

            Puzzling to say the least.

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          7. Your record on prognostication has been way off lately. Sometimes it is best not to say what you think and then brag, AFTERWARD, that you knew it all along.

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          8. It’s not love of Trump. I sincerely hope he does not run in 2024.

            But I do love the Constitution and the wisdom it represents more than I love or hate any one politician.

            The limitations placed on impeachment and the separation of judicial and legislative powers is there for very good reason. Obliterating those boundaries because you hate Trump so much will carry a very heavy price down the road.

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          9. And there is no limit on presidential power or actions?

            How is an elected official ever to be held accountable if he can commit egregious acts ignoring his oath of office? Impeach, the quit before conviction.

            You know Trump hates taking responsibility for anything. He said so.

            So we just ignore his actions on January 6 and slide past extortion against Ukraine.

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          10. Well, there’s no deterring your hatred, and I suspect you are typical of Democrats, so I guess it’s time to listen to Napoleon.

            But I will tell you what expect 18 months from now. People will be saying, ‘Trump was kind of a jerk, but these Democrats are really petty, vindictive assholes who don’t know how to win graciously.

            But do go ahead, I want to see your party utterly wiped out in 2022.

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          11. See, and I would like the Republicans to return to the loyal, emphasize “loyal” BTW, opposition to balance our government.

            Trump destroyed it with no plans to rebuild.

            So I would say vindictive lies in the heart of you and other conservatives. And to say the ex-president was “kind of a jerk” is gilding the lily. He tried to overthrow government to keep himself in power.

            But if you want failure for our nation, I am sorry for you.

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          12. Trump tried to overthrow the government only in your fantasies.

            What is it you think a ‘loyal’ opposition does? Just submit quietly?

            The agenda of the Democratic party is to destroy our country as a place of liberty and responsibility, so opposing it at every turn is working for the success of the country.

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          13. Your opinion, of course.

            You don’t think Trump did that rally on the sixth for acoustic testing? Or that he delayed calling off his gangs for hours because he was just joking?

            Of course not. You know why he tried to force Pence to act against his oath of office. And you know how he tried to pull it off.

            Loyal opposition is effective opposition. Loyalty to the nation is foreign to the right wingers. Loyalty to Trump is paramount.

            You have already stated many times that voting is an anathema to you. So I understand your support for autocracy.

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          14. Your hatred of all things Democratic, including democratic elections is noted again, with the disdain it so richly deserves.

            Calling on VP to not accept the EC votes. Calling on Congress to reject the votes of over 20 million AMERICANS. Calling the AG in GA to “find” the votes necessary to change the outcome of the election in that state. Suing state after state using bogus claims of fraud. These are the actions of a man trying to overthrow the government.

            It is not loyal opposition. It is whining crying bitching and moaning that the American people rejected him by more popular votes and by the same number of EC votes that he claimed gave him a landslide in 2016.

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          15. “But I do love the Constitution and the wisdom it represents”…

            You may love it, but you seem to have hard time understanding it.

            There is precedent for an official to be tried under impeachment rules even after leaving office. Also, conviction in impeachment can preclude the offender from ever holding public office again.

            But you don’t think that is true, so there is no convincing you no matter how many Constitutional scholars have made the point.

            And in secret the GOP does not want T**** to run in 2024. But they have tied their wagons to that horse’s ass and is stuck with him.

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          16. “But I do love the Constitution and the wisdom it represents more than I love or hate any one politician”

            You have very, very funny ways of showing it. Donald Trump has spent four years pissing on it with you cheerleading every step of the way.

            Your whole spin about on this trial is based on a falsehood. Trump is not some random person nor a rising politician whose enemies are out to stop him. He was impeached WHILE IN OFFICE. Just like the Constitution calls for. And, whether you are willing to accept it or not, Impeachment and the Trial in the Senate IS a political matter – not a judicial one. Just one more check and balance brought into our political system BY THE CONSTITUTION.

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          17. “The agenda of the Democratic party is to destroy our country as a place of liberty and responsibility, so opposing it at every turn is working for the success of the country”

            And you accuse others of being “haters?” You are the hater. You hate democracy. You hate America as she is today.

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          18. According to the Cornell Law website, “Article I, section 3, clause 7 provides further that “judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States.”

            T**** was impeached PRIOR to January 20, 2021. His Senate trial IS CONSITUTIONAL, based on this CONSITUTIONAL clause.

            Too bad he couldn’t follow the lead of John Quincy Adams who stated “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

            Maybe all the little T****ettes on this board would also consider this. But I doubt it.

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          19. The next phrase after the one you cited is highly relevant to this discussion. It makes it crystal clear that an Impeachment Trial by the Senate is not a criminal proceeding . . . .

            “Article I, Section 3, Clause 7:

            Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

            If Trump gets a pass from the Senate – or if he doesn’t – he is still answerable to the law for the crimes he committed.

            https://constitution.congress.gov/browse/essay/artI_S3_C7_1_1/

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          20. That last is true, in that Trump can be tried as a private citizen for incitement. but only in an appropriate court, by a jury of his peers, and under the normal Rule of Law and due process.

            But he cannot, as a private citizen, be tried by the legislature.

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          21. “But he cannot, as a private citizen, be tried by the legislature.”

            Hmm, You seem to think that if you say something non-sensical often enough it makes it more persuasive.
            Sorry, it does not work that way. A claim stands or falls on its merits.

            Yours falls completely flat because it ignores the highly relevant fact that Trump was impeached while holding office. You cannot wish this fact away. In addition, as the Constitution makes clear there are other sanctions for High Crimes and Misdemeanors besides removal from office at play and those sanctions are still relevant with respect to Citizen Trump.

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          23. Your ignorance is showing. The essence of a Bill of Attainder is that it is a legislative judgment of criminal guilt of a citizen WITHOUT a trial. Let me repeat – WITHOUT A TRIAL.

            The Founders banned them because they had been widely abused by monarchs of England to suppress dissent and opposition. Reactions to that abuse are found throughout the Constitution including the strict requirements for a finding of treason. And the ban on ex post facto criminal laws. And, of course, the clear definition of impeachment procedures and the strict limits on the sanctions that could go with impeachment.

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          24. A Senate vote on impeachment isn’t really a trial anyway, as you yourself pointed out, there is no due process, no standard of guilt. Just a partisan vote.

            But go for it, the people know abuse of power when they see it.

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          25. ” . . .the people know abuse of power when they see it.”

            That we can agree on. And that is why the Democrats are not afraid of the political consequences of calling Trump to account for his obvious incitement to insurrection.

            Oh, wait. By “the people” you meant the “real Americans” like you.

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      4. “Either way, Trump prevails.”

        The only reason that happens is because there is no backbone in the GOP to stand up to the man who cost them 2 Senate seats in deep Red Georgia and continues to do everything in his limited power to remake the GOP in his own, ungodly image.

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