At Reason Josh Blackman and Seth Barrett Tillman, not particularly Trump fans and not Republicans, after critiquing the House managers’ views on the First Amendment in their trial of former President Trump make a good point:
The House’s article of impeachment does not mention or use the Brandenburg standard to charge the President. A draft version of the article relied on something akin to Brandenburg, but the adopted article removed that standard. Instead, the House made up a standard out of whole cloth: that Trump “willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol.”
The House chose that standard—they have nailed their colors to the mast. And that decision now binds the House, the Managers, and the Senate. Given the sole article of impeachment, the Managers are precluded from raising an alternate argument based on Brandenburg. In other words, the Managers cannot seek to convict Trump based on some other charge or theory of liability, even one akin to a lesser-included offense.
If the House cannot secure a conviction based on the legal theory it has put forward, then the Managers cannot argue that Trump could still be convicted under other legal theories not alleged in the Article of Impeachment.
At OTB James Joyner, also no fan of Trump’s and teetering on the brink of being a former Republican, doesn’t think that the House managers are making their case:
As to the merits of the case, it’s not obvious to me who was supposed to be persuaded by it that wasn’t already on board.
I believed on January 6 and continue to believe that Trump’s repeated attempts to overturn the legitimate vote, urging of various officials to commit crimes to keep him in office, and repeated fanning of the flames of illegitimacy with his supporters warranted his impeachment, removal from office, and bar from future office. But the sensationalism of the impeachment managers’ presentation actually detracted, in my judgment, from the notion that Trump incited the riot.
Indeed, they reinforced my view that the storming of the Capitol on January 6 was not, as it appeared in real time, simply a bunch of zealous Trump supporters pushed over the edge by a speech that morning but rather multiple, overlapping events—including pre-planned terrorism by various Patriot Militia and white supremacist extremist groups that were clearly operating independently from Trump.
while Ann Althouse remarks:
I was not willing to sit through the hours and hours of presentation of other things that I already knew. I wanted them to focus on the decisive question: Trump’s responsibility. Some people have a low standard and think that if Trump stirred up the crowd and made them feel energized to do what they independently decided to do, he’s responsible enough. But they’re choosing, I think, to offer nothing to those of us who think Trump needs to have specifically intended the breaking into the Capitol. Can anyone point me to the part of the trial where my concern is addressed? I’m not willing to stare at a smokescreen.
The divisions in the United States are broad and deep and aren’t as simple as “Trump fans” vs. “lovers of democracy” or Republicans vs. Democrats. I don’t see how Humpty Dumpty can be put together again.
Indict Q.
Blackman’s complaint that the charges failed to specify the Brandenburg standard seems way too much of a legalistic technicality even for me. The Brandenburg precedent seems to be a defense to the incitement charge; even if the speech did incite lawless action, its protected by the Constitution.
The House’s better position is simply to ignore Brandenburg and argue that the standards for impeachment and punishment are different. But that’s easier said than done. That would mean avoiding the language of punishment. It would mean donning the gown of republican virtue credibly, quoting slave-owning Founders, and being prepared for, what I assume to be coming, quotes of Democratic leaders who have fallen short of those standards.
All of which supports the point I’ve been making. The House’s single article of impeachment is itself too legalistic, to its detriment. Rather than charging incitement, they should a) have charged reckless disregard and b) made the charges extensible, as was the case with Andrew Johnson.
Its a national disgrace. The Managers got trounced today.
As for Joyner. He conveniently forgot to mention BLM and Antifa participants. But at least he can read Trump’s mind, despite his actual words. So he’s got that…….
I do not understand the fuss. He’s a witch.