Accepting that the second impeachment trial of Rhymes With Chump is constitutional, we have to progress to the issue itself: Did he act with malicious intent? And did that constitute an illegal act?
Of course RWC's lawyers will say no. They'll claim that like anybody else, he had First Amendment rights and did nothing more than exercise them. The crowd acted on its own.
That's nonsense. The crowd wouldn't have done what it did had he not spurred them on, lying about being with them as well. He wanted them to disrupt the constitutional process of counting the Electoral College votes, and they came very, very close.
There are a number of standards by which to judge what he did. One of the best is called the
"Brandenburg test," which stems from a Supreme Court case in 1969.
I won't bother with the details of the case, other than to say that Ohio had a law prohibiting the kind of speech that a member of the Ku Klux Klan made, which came pretty close to being the same kind of speech that RWC made on January 6. But rotten as he was, too, he got away with it because there was a big difference, and it comes down to a couple of key words in the Court's decision.
The Brandenburg speech made vague promises of violence at some later date. It was not a "clear and present danger" of significant public disruption, as Oliver Wendell Holmes said back in 1917 in the Schenk case, in which flyers were handed out suggesting that men resist the draft. (I don't agree with the ruling, but it was done during wartime.)
RWC did not do that, but neither did he have to. He beckoned the crowd to proceed to the Capitol immediately. He said he would be with them. He told the crowd that if they didn't, "You won't have a country left."
That met the Brandenburg standard. The Court said that the speech had to be one that was "directed or producing imminent (my emphasis) lawless action" AND it had to be "likely (again, my emphasis) to incite or produce such action."
The speaker and the crowd were close enough to the Capitol to 'produce such action.' It was a mere walk of a few blocks, which could have and was achieved that very day. His influence, as president, cannot be overlooked. He wasn't just another lawyer, like Rudy Giuliani; he wasn't just another member of Congress, like Mo Brooks of Alabama (though he, too, should be ashamed of himself). He was the president, the country's leader, and he was in fact leading them in suggestion that they should raid the Capitol.
That he didn't say those exact words has nothing to do with it. The circumstances were ripe enough to produce the effect.
How do we know this? There is film footage of the crowd reacting to RWC's speech. telling each other to go to the Capitol. Nobody had to be so specific as to precisely direct them; they knew what they were doing and why.
There are those who actually trespassed on the Capitol grounds who in fact said so. They said that RWC inspired them to do it. What other proof does one need?
Writing as I do, and all my adult life, I've been inclined to give free speech and press a very wide swath in which to operate. The greater weapon to utilize against irresponsible speech is responsible speech, and it takes a lot for me to allow that mere words can cause the kind of damage that lead to investigation and banning. But this situation is different.
It's different because, though I don't like admitting it, RWC's demagoguery has resonated with enough people that his lies and innuendoes are accepted as truth. He knows which words to use to dodge sufficient scrutiny and hide behind generalizations and vagueness. In other words, he speaks in code that takes little sophistication to understand. He nudges, and he's good at it.
As such, he has gained a status untouched by very many other people anywhere and at any time. For many, the stage moves with him. Had not that been so, this disgusting set of assaults would not have happened. He did not merely throw words into the air; he urged a crowd to break laws and threaten lawmakers. How do we know this? Because senior staff members have said that he watched it on TV and enjoyed what he saw.
He saw people say things like, "Fuck the police," "fuck these pigs," and "fuck the blue," which should give those police unions who supported RWC some pause. And he tweeted, summarizing, This is what you get when you get in my way.
Four hours later, he told the rioters to go home, after they had done what he wanted them to do but not completely succeeding. He'll undoubtedly use that as a defense that he had tried to warn them away. But he saw them do the damage first, so that will hold no water.
The Brandenburg case had liberal jurists like Hugo Black and William O. Douglas on the side of free speech, holdovers from the Warren Court. It was a different time. The case came right up on the edge of, but didn't quite exceed, the limits of free speech. Still, a gutsy ruling: The KKK was just as unpopular then as they are now.
I wouldn't be surprised if RWC's two shaky lawyers bring the Brandenburg case up and try to steer Senators around its wording. But they can't. The film is too revealing, and the Democratic managers made sure to do the excerpts in real time to demonstrate the clear connection between speaking and reacting.
The previous president arranged for that, just as cleverly. He knows no shame. He only knows power. He believes that those who defy him are weak, and those who support him are strong.
It's just the opposite. Most Republican Senators will hide behind a specious claim of unconstitutionality, but we know better. So do they.
Be well. Be careful. Wear a mask. One more day closer to a second vaccine. With some luck, I'll see you down the road.
Mister Mark
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