E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The extent to which impeachment risks being overlegalized can be assessed by the verbs people use when describing former President Trump's behavior and the standards for impeachment. The evidence is clear that President Trump caused, encouraged, provoked, and supported the insurrection of January 6. "Inspired," "emboldened," and "facilitated" also come to mind. Wordsmith's could not doubt come up with at least ten other verbs that no one questions accurate capture Trump's responsibility for January 6. Putting aside technical questions of American constitutional law, any sane person would want to impeach a president who, despite being the chief law enforcement official of the United States, caused, encouraged, provoked or supported an insurrection. We would fire a police officer who while on the job caused, encouraged, provoked and supported an insurrection. Same for the president.
"Incitement" is, at least in constitutional law, a technical legal term that is designed to protect private speakers who have no law enforcement responsibilities. The soapbox orator is free to say "something ought to be done to prevent Congress from [whatever] in part because the soapbox orator is not constitutionally charged with protecting Congress when Congress does whatever. Proving incitement under the First Amendment is and ought to be very, very difficult. Whether the House managers who are demonstrating beyond a reasonable doubt causing, encouraging, provoking, and supporting will prove inciting as inciting is defined in the First Amendment is not entirely clear, though they are doing a good job. But no sane regime would demand incitement when causing, encouraging, providing and supporting an insurrection are clear.