Reckless rhetoric is a reckless standard in this impeachment

Little more than one year since the first impeachment of Donald Trump, the Senate is poised to pass judgment on him again. There is, however, one notable difference in the trial that starts today. In 2020, his conduct when it came to Ukraine turned on his words alone. This time, a vote to convict could be seen as implicating a host of others in using similarly reckless rhetoric, including some of these Senate jurors.

The search for moral clarity will be lost if Americans cannot distinguish between the behavior of the accused and that of his jury. Polls show half the country favors conviction, so this trial could end up as an indictment of both sides for fueling our divisions. Impeachment was intended to be used in the clearest cases to secure a supermajority vote for conviction. However, Congress itself could wind up appearing like an unimpeached conspirator, not in the riots, but with our national discord.

The Senate will focus on the remarks by Trump last month that could be viewed as criminal incitement or as political exhortation. The House will ask the Senate to convict on how his words were interpreted even if they did not call for violence. The House impeachment managers plan to play the video of Trump urging his supporters to “fight like hell, and if you do not fight like hell, you are not going to have a country anymore.” He told them, “We will not be intimidated into accepting the hoaxes and the lies that we have been forced to believe over the past several weeks.” The problem? Such words are similar to calls for a typical protest.

While the House frames these words in the most perilous light, it barely mentions other words that reinforce nonviolence. Trump told the crowd that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” He said the reason for the march was that “we are going to cheer on our brave” members of Congress. As for those opposing an electoral vote challenge, Trump said, “We are probably not going to be cheering so much for some of them. Because you will never take back our country with weakness.”

Cheering on your allies is an act of free speech rather than insurrection. Yet the House impeached Trump for inciting an insurrection or rebellion. Its article does not charge him with recklessly causing riots or threats to Congress. It alleges an effort to overthrow our government, which is the deepest hole to dig in the House and then fill in the Senate. The Supreme Court has rejected fluid standards to criminalize speech. Cases based on these remarks would likely fail. In Brandenburg versus Ohio, the Supreme Court refused to allow the government to criminalize speech which calls for “the use of force or of law violation” unless it is imminent.

Lawyers for Trump will likely play similar language used by Democrats in both chambers to “fight” for the country and “retake” Congress. During the inauguration of Trump, Democrats denounced his legitimacy as riots broke out in Washington involving several violent groups. Maxine Waters later called on people to confront Republicans in public. Ayanna Pressley also insisted during the violent marches last year that “there needs to be unrest in the streets.” Kamala Harris claimed “protesters should not let up” even as many of them became violent. Nancy Pelosi has condemned her fellow lawmakers as effectively traitors and the “enemy within.”

These Democrats claim they meant peaceful acts and I believe them. But that is the point here. People tried to burn buildings and even seize police stations or sections of cities. The remarks of Democrats did not cause that violence. Yet this impeachment trial invites similar words to be interpreted simply based on whether you believe or approve of the speaker.

Such reckless rhetoric reflects our age of rage. Charles Schumer stood in front of the Supreme Court and, citing two justices by name, he declared rather menacingly, “Hey, Gorsuch. Hey, Kavanaugh. You have unleashed a whirlwind and you are going to pay the price.” Further, Cori Bush seemed to defend that recent takeover of a Saint Louis prison in a tweet with the words of Martin Luther King that riots are “the language of the unheard.” Gretchen Whitmer defended state lawmaker Cynthia Johnson for calling for “soldiers” to make Trump supporters “pay” for harassing her.

James Comey used such rhetoric when he said, “The Republican Party needs to be burned down. It is just not a healthy political organization.” Washington Post columnist Jennifer Rubin likewise claimed, “We have to collectively in essence burn down the Republican Party. We should level them because if there are survivors, if there are people who weather the storm, they will do it again.” Though the Republican National Committee was targeted with the pipe bomb, would that constitute incitement? Not under Brandenburg. Such rhetoric extends to academics who regularly abhor violence. Professor Erik Loomis said he saw “nothing wrong” with the killing of a conservative protester from a “moral perspective.”

While they are not the president, lawmakers and pundits often engage in more violent speech than what Trump said. While clearly not responsible for the disgraceful riots at the Capitol, many of them remain accessories to stoking our politics of hate and division. Many of their claims are being defended as appropriate calls to action to combat greater social injustice. The issue is whether we want shifting majorities to decide whether words are inciteful or insightful. That is a dangerously fluid standard.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.