A Flawed Impeachment for 'Incitement'

President Donald Trump was hastily impeached by the House for a second time on Wednesday for “inciting insurrection.”

Legislators accused Trump of egging on, instigating, and inciting his supporters to engage in insurrection and overthrow the U.S. government, starting with a violent attack on Congress. Uttering phrases such as, “You will never take back our country with weakness,” during his speech on Jan 6, 2021, Trump encouraged his supporters “to peacefully and patriotically make your voices heard” at the Capitol building.

There are major factual errors in the House’s decision. We know now that the riots started well before Trump’s speech ended, so it’s wrong to strongly or even weakly imply that the subsequent events were a reaction to his speech. Furthermore, after the impeachment Wednesday, CNN reported that the FBI is examining evidence that the attack on the U.S. Capitol was planned, with the rioters stashing equipment in advance. The Obstacle Is the Wa... Holiday, Ryan Best Price: $6.98 Buy New $17.25 (as of 04:07 UTC - Details)

Thus, it is not at all clear that Trump anticipated the actions of the rioters, let alone supported them. Rather, the goal of his speech was to attain an electoral college victory. How so? By demanding that electors from enough Biden states be rejected by Mike Pence in particular, in his role as Vice President, and by Congress in general. It was his last-ditch effort to make the case that Congress should overturn an election that he, along with many others, thought improper. If read carefully, Trump’s Jan. 6 speech will not offer a scintilla of evidence that he incited anyone.

In retrospect, however, the speech and rally appear unwise, for several reasons. First, he lost the support of such virtue-signaling members of his Administration as Betsy DeVos, William Barr, Mick Mulvaney, Matt Pottinger, Ryan Tully, Stephanie Grisham, and Sarah Matthews. It also gave the likes of Senate Minority Leader Chuck Schumer and House Speaker Nancy Pelosi an opening to attack him. Stillness Is the Key Holiday, Ryan Best Price: $3.65 Buy New $8.90 (as of 03:43 UTC - Details)

As a supporter of President Trump, do I regret that he gave that speech? Yes. Not because of the discourse—which was excellent—but because of the “hay” his enemies were able to make of it. Schumer and Pelosi are deliriously happy that Trump spoke out as he did on this occasion; therefore, I am not.

But let us set that aside for a moment and use this episode to engage in a philosophical analysis of the law regarding incitement. “Incitement” is pretty much on everyone’s lips, Democrat as well as Republican, friend or enemy of Mr. Trump’s, so this gives a golden opportunity to reflect upon the libertarian analysis of incitement, and why it should not be considered a crime.

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