CLEVELAND — The sole article of impeachment against Donald Trump is for “Incitement of Insurrection.”
As such, the main focus of the former president’s impeachment trial will be on the freedom of speech protections contained in the First Amendment. The impeachment managers and defense lawyers will argue the precedents found in Supreme Court cases such as Schenck v. United States in 1919 and Brandenburg v. Ohio in 1969.
I suggest we examine Trump’s words as non-lawyers, so as not to obscure the forest for the trees.
Let us begin not with the speech Trump gave at the “Save America” rally on Jan. 6, but much earlier in order to fully grasp the significance of those words spoken on that day. On Aug. 17, 2020 (78 days before the Nov. 3 election), Trump proclaimed at a rally, “The only way we’re gonna lose the election is if the election is rigged. Remember that.”
That fallacious syllogism gave birth to the present-day “Big Lie” that contends Trump won the election by a landslide. Thereafter, in rallies, tweets and press briefings, Trump constantly reminded us of his prediction, and so, in time, before a single vote was cast, it became accepted by many that the Nov. 3 election would be rigged. The election was held and Trump lost by more than 7 million votes. Unfortunately, the “Fraud Genie” was already out of the bottle and there was no putting it back.
Clearly, decisive action was needed to remedy this injustice, and so it came to pass that the “Stop the Steal” crusade commenced. Rudy Giuliani would become the champion of this noble cause. Bolstered by Republican allies in the House and Senate, he set out to prevail. Between Nov. 3, 2020 and Jan. 6, 2021, Rudy and company argued their claims of “election fraud” before no fewer than 50 judges, both Democrats and Republicans. They were laughed out of each and every courthouse, and cases were dismissed on the universally accepted legal doctrine that “gaslighting” would not substitute for “evidence” in a court of law. They never faltered or despaired, because what Giuliani and Trump knew for certain was that “gaslighting” is the perfect substitute for “evidence” in the Court of Public Opinion.
The “Stop the Steal” campaign gained momentum among Trump supporters, so much so that on Jan. 6, thousands of these proud conservative Republicans attended the big rally, resplendent in their QAnon attire, Confederate flags and Proud Boy colors. For over an hour, they again heard Trump indignantly claim that 8,000 dead people voted for Joe Biden and that Dominion voting machines had flipped tens of thousands of votes from Trump to Biden. Trump directed his supporters to walk to the Capitol and “fight like hell.” Just for extra measure, Rudy reminded them to engage in a “trial by combat!”
Allow me to conclude as I began. If you think like a lawyer, you’ll miss the forest for the trees. Forget about the “two-pronged” test in Brandenburg v. Ohio, which held speech can be prohibited if it (1) is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”
Simply hear the commonsense words of Republican U.S. Rep. Liz Cheney on Fox News: “We just had a violent mob assault the U. S. Capitol … There is no question that the president formed the mob. The president incited the mob. The president addressed the mob. He lit the flame.”
It is my opinion that, if we are being truly honest with ourselves, and examine the words spoken by then-President Trump from when he first warned of a “rigged election” on Aug. 17, 2020, concluding with the directive to “fight like hell” on Jan. 6, 2021, reasonable people will conclude that the deadly Insurrection was not in the least bit surprising. Quite the contrary, it was a forgone conclusion.
Neal O’Donnell, born and raised in Cleveland, retired 15 years ago as a Cleveland police captain after serving in the Cleveland police department for 30 years. He has a bachelor’s degree in English from Cleveland State University and is a graduate of the FBI National Academy in Quantico, Virginia.
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