According to Charlie Pierce, two words make all the difference.
I know there’s an nearly overwhelming impulse among many people to blow off the upcoming impeachment trial of El Caudillo del Mar-a-Lago in favor of worrying about the pandemic, and the economic miseries, and the dreadful lack of bipartisanship that has given Susan Collins a case of the sad. However, as can be seen by the case presented Tuesday by the House managers—and, to an extent, by the answers provided by the former president*’s lawyers—the issues in play in that trial are as serious as any ever brought against anyone who ever was president, asterisk or not. The former president* stands accused of waging a guerrilla war against the government he was elected to lead. As the House Managers put it in their filing.
By the day of the rally, President Trump had spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America. As a result— and as had been widely reported—the crowd was armed, angry, and dangerous. Before President Trump took the stage, his lawyer called for “trial by combat.” His son warned Republican legislators against finalizing the election results:“We’re coming for you.” Finally, President Trump appeared behind a podium bearing the presidential seal. Surveying the tense crowd before him, President Trump whipped it into a frenzy, exhorting followers to “fight like hell [or] you’re not going to have a country anymore.” Then he aimed them straight at the Capitol, declaring: “You’ll never take back our country with weakness. You have to show strength, and you have to be strong.” Incited by President Trump, his mob attacked the Capitol.
“His mob.” Those two words are the heart of the case brought against the former president*. There are literally hundreds of videos supporting the proposition that, in every way that mattered, this was indeed the former president*’s mob. The mob included his personal lawyer and his eldest son, who joined him in inciting them, and it doesn’t matter how many times the former president* said the word, “peaceful”* out loud, he knew what he was doing as clearly as he knew what he was doing back in 2015, when he would tell his crowds to “beat the crap” out of protestors.
And, in a very real way, the former president*’s new lawyers cop to a good piece of this in their reply, which concentrates at least in part on the argument that, even if the former president* did incite the mob, he did so in such a way that’s covered by the First Amendment’s guarantee of free speech. If your reaction to this is, “Holy hell, these guys have big, clanging brass ones,” you’re not alone, pilgrim.
It is admitted that after the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic “safeguards” states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures. Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false. Like all Americans, the 45th President is protected by the First Amendment. Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation.
You have to admit. It’s as daring a Hail Mary argument on behalf of a guilty party as any you’ve ever heard. Not only does it none-too-subtly imply that there’s some theoretical merit to the argument that the election was rife with fraud, simply because the former president* said so in public, but it also says quite directly that a president* of the United States cannot be stopped from inciting an insurrection, or be punished for having done so, not because of presidential immunity, but because he has the same First Amendment right to do so as some guy on a milk crate in Washington Square Park. Of course, eventually, the former president*’s lawyers follow this argument right over a cliff.
OK, look out below!
It is admitted that President Trump spoke on the telephone with Secretary Raffensperger and multiple other parties, including several attorneys for both parties, on January 2, 2021. Secretary Raffensperger or someone at his direction surreptitiously recorded the call and subsequently made it public. The recording accurately reflects the content of the conversation. It is denied President Trump made any effort to subvert the certification of the results of the 2020 Presidential election. It is denied that the word “find”was inappropriate in context, as President Trump was expressing his opinion that if the evidence was carefully examined one would “find that you have many that aren’t even signed and you have many that are forgeries.” It is denied that President Trump threatened Secretary Raffensperger. It is denied that President Trump acted improperly in that telephone call in any way.
Ultimately, the former president*’s case rises and falls on whether or not you can impeach a president after he leaves office. But it’s not our job here to deny his lawyers some fun building up those billable hours. I do not have a First Amendment right to perjure myself. A con man does not have a First Amendment right to sell yachts he does not own. And it’s hard for me to imagine a constitutional philosophy under which a president has a First Amendment right to gin up a mob and set it upon the Congress. But, then again, I think I lost the plot on this politics thing long ago.
I find it ironic that Trump’s mob lawyers would plead the First Amendment when their client has done as much as anyone in the office ever did to trample on the rest of the the Constitution. I’m not a lawyer, but as we’ve all learned in high school civics class, not to mention the playground and sports fields, that words have consequences and that while you can freely express your opinion about anything you want, it’s not a violation of the Constitution if people respond to what you say and that you bear some responsibility for saying the words in the first place.
That said, the one hundred people who will sit in judgment on Trump will have sworn an oath to uphold the law and the Constitution. The supreme irony and the sad fact is that there will most likely not be enough of them to say the one word that matters: Guilty. Why? Because they fear that the mob that came after the Capitol on January 6 will then come after them. And there’s your irony on a silver platter.