Senate Trial
For the second time in as many years, the Senate trial of Donald John Trump begins today. It is a trial caused by the House of Representatives “impeachment” of the then-President in January. The House charged the President with committing the Constitutionally mandated “high crimes and misdemeanors”. In this case, they are charging him with inciting insurrection by literally sending a mob to attack the Congress. The purpose of the attack was to stop the certification of the election results of 2020. Then-President Trump claimed that the results were fraudulent, despite over ninety Court decisions to the contrary.
As a result of the attack, five people died and the Capitol was “invaded” for the first time since the War of 1812. The process of certifying the vote was disrupted, and one police officer was killed. One hundred and forty other officers were injured, and two have committed suicide. While Congress resumed session hours after the “insurrection” and certified President Biden’s victory, it is safe to say that the Congress has not been the same. Neither has the United States of America.
Legal Technicality
The former President is defending himself with four legal arguments. The first, to be examined and decided today in the Senate, is whether a President who no longer holds office can still be held for trial. The vast majority of Constitutional scholars agree that he can be, even though the “main” penalty of an “impeachment trial” is removal from office, a moot point in this case. The reason: The Constitution also contains the clause that the Senate can further “punish” by barring the convicted from every holding Federal “positions of trust”. It is this second punishment that the Senate seeks.
Peacefully
The second argument is that the President spoke to the crowds on January 6th in a “peaceful manner”, in fact, using the word “peacefully” to encourage their actions. That was one word in an over seventy-minute harangue, in which he called for the crowd to “march on the Capitol” and to “fight, fight, fight”. He told them “we will not take this anymore”, and that “we have to show strength”. And he reiterated his false claim that the election was stolen, and that it was their duty to “stop the steal”.
Everyone Else Does It
The third argument is one that Senator Lindsey Graham, a current “impeachment juror” and Trump apologist argues: Democrats do it too. Graham is “threatening” to demand witness testimony from Democrats who, he says, advocated violence during the Trump administration. His particular focus is on Congresswoman Maxine Waters, who at the beginning of the “child separation” crisis told a crowd to confront Trump Administration members in restaurants, gas stations and on the street. Graham equates her actions, and other Democrats during the George Floyd protests last summer, as “equal” to the actions of Donald Trump regardless that the outcomes were wholly different.
This is similar to the argument made by some Republicans in the House of Representatives last week, as the Democrats stripped the Committee assignments of Republican Congresswoman Marjorie Taylor Greene. The Congresswoman from Georgia advocates the QAnon theory, and has called for the murder of Speaker Pelosi. When the Republican Party failed to punish her for those statements and others, the House as a whole did. In the debate, Republicans, including Minority Leader Kevin McCarthy, equated Greene’s statements with those made by Waters and Ilhan Omar, who was been outspoken about the power of the Israeli lobby on Congressional action.
The statements don’t compare. Neither Waters or Omar threatened death to anyone. Neither has taken stands like Greene that the school shootings at Sandy Hook or Marjorie Stoneman Douglas were “faked”. And neither sent a mob to attack the United States Congress.
Free Speech
But it is the fourth argument for the former President that will be the most interesting to hear articulated. The lawyers for Mr. Trump are preparing to argue that, no matter what he said on January 6th, he was simply exercising his First Amendment right to “free speech”, and that Senate has no authority to sanction that right. They will claim that the United States Supreme Court makes the speech of January 6th permissible under the 1969 Case Brandenburg v Ohio.
Clarence Brandenburg owned a television repair shop in Arlington Heights, Cincinnati, just down the road from where I grew up in the suburb of Wyoming. Brandenburg also owned a farm on the east side of Cincinnati, near Coney Island, and he invited a news crew from WLW-T to come and film a Ku Klux Klan rally there.
The rally was small, twelve hooded men who burned a cross and gave speeches. Brandenburg spoke about a “400,000-man march on Washington” and said:
“If our president, our Congress, our Supreme Court, continues to suppress the white Caucasian race, it’s possible that there might have to be some revengeance (sic) taken.” (Cincinnati Enquirer).
Brandenburg Standard
Brandenburg was charged with an Ohio Law against “advocating violence as a means of political reform” and sentenced to one to ten years in prison. On appeal, the United States Supreme Court overturned the conviction, and set the standard for when “political speech” crossed the line into criminal action. The “line” is created in this phrase of the Court’s statement:
“…except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (Cornell – section 7).
The lawyers for Mr. Trump will argue that whatever he said or did on January 6th, it doesn’t meet the “Brandenburg Standard”. And the House Managers prosecuting the case, will do everything they can to show that through both direct action and reckless disregard, the former President’s actions leading up to January 6th, and his speech of that day, did exactly that: incite lawless action and produce the Insurrection.
But we can’t ignore the irony. Donald Trump will base a large part of his defense on the actions of a sad little KKK rally of twelve men in costumes on a farm near Coney Island. The essence was that whatever Brandenburg said, he was ultimately ignored. It’s too bad the nation wasn’t so lucky on January 6th.
