In all likelihood, President Trump is going to be impeached by the House this week, probably on Wednesday. It should be a moment of strong, bipartisan protection of the electoral process and of Congress as an institution. Instead, Democrats — at the very moment when they appear to have the high ground — are politicizing the process. Instead of pursuing a preservation of the Constitution that can unite the country, they are making the impeachment push the coda of their four-year partisan warfare against Trump.
The Democrats have labeled their proposed impeachment article “Incitement of Insurrection.” This is needlessly problematic and provocative.
As I’ve explained, the president could not be convicted of the federal penal offense of inciting a crime of violence (Section 373 of Title 18, U.S. Code). Under the criminal law, it would be necessary to prove beyond a reasonable doubt that he intended to cause violence, that he clearly called for it, that believed his words would result in violence, and that there was a strong probability that his words would cause the violence that happened.
Make no mistake, what the president did was reprehensible. It cannot be gainsaid that he recklessly stoked a throng of people, including some mob elements, with rhetoric about the election’s being stolen and the purported need to take back the country. But he also made statements about wanting peace and being against violence; and he would plausibly say that he meant the rhetoric about taking back the country in a political sense, not a forcible sense.
Proof of recklessness is not sufficient for a criminal incitement conviction. There has to be specific intent to cause violent crime.