Thursday, February 11, 2021

Overlegalization, Impeachment and Verbs

Mark Graber

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.

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