Written by Guest Author: Oliver Pope

11th February 2021

It has been over three weeks since Joe Biden was sworn in as the 46th President of the United States. Since this time, former President Trump has mostly fallen under the radar – remaining banished from the mainstream social and news media. However, all that is about to change as the Senate Impeachment hearings ramp up. Inevitably, the trial will revolve around whether Donald Trump’s language surrounding the January 6th Capitol Riot constituted incitement of insurrection. If the Senate convicts Trump on these charges, he could ultimately be prevented from ever holding office again. Such a conviction will have far-reaching constitutional, political and social ramifications, with freedom of speech being at the forefront of the debate.

Many strongly argue that Trump’s actions transcend the boundaries of free speech. Instead, I argue that in reality, the issue is more complex, more contextual and more nuanced and is further complicated when examined through a legal, political and/or moral lens.

The First Amendment in the United States Constitution protects freedom of speech, allowing individuals and collectives to express opinions – both popular and unpopular – unless their speech directly incites violence. His reckless tweeting on January 6th – in which he concurrently decried election fraud whilst encouraging peaceful protests – is not the primary focus of the impeachment trial. Rather, the trial is predicated on Trump’s spoken rhetoric at his rally in Washington DC and the phrase, “if you don’t fight like hell, you’re not going to have a country anymore”.

The primary phrase in contention: “If you don’t fight like hell you’re not going to have a country anymore”. An excerpt from House Resolution 24 of 117th Congress: Impeaching Donald John Trump, President of the United States, for High Crimes and Misdemeanors, Source: CNN

Although I am no Constitutional lawyer, I argue that from a legal viewpoint, what Trump said likely does not constitute incitement. Firstly, the US Courts generally observe that political speech is at the ‘core’ of the First Amendment and is thus, strictly protected.It also matters in what forum the address is made. Traditional public forums such as parks and sidewalks and designated public venues such as municipal theatres and meeting rooms are all strictly protected from government interference. Making a political speech at a political rally in the political heart of America as the President of the United States makes it very hard to build a case around incitement.

Despite this, some argue that the phrase “fight like hell” breaches the freedom of speech provisions under The First Amendment. In the Supreme Court case, Chaplinsky v New Hampshire, 315 U.S. 568 (1942), Justice Francis W. Murphy on behalf of a unanimous court ruled that ‘fighting words’ are words that:

“by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Using the Justice’s judgement, it is difficult to argue that Trump’s words had little social value – millions of his supporters believed in the legitimacy of his election fraud claims – and there was substantive interest in what he had to say. Further, it is not just Trump who uses inflammatory language. Representatives including Chuck Schumer and Attorney General of Pennsylvania, Josh Shapiro have used the same phrase when talking to the media.

Kim Iversen explores the hypocrisy of politicians and the use of ‘fight like hell’ and other inflammatory remarks used by other politicians. Source: Kim Iversen

In reality, politics is an emotive and contentious arena of ideas, and thus, at times, divisive and potentially dangerous things may be said. We can all agree that the violence and chaos that occurred at The Capitol was horrific and heinous. However, during these times, it is not conducive nor unifying to uphold double standards and displays of hypocrisy. Rather, criminality should be totally condemned, and perpetrators convicted whilst still recognising the importance of free speech and individual autonomy. In doing so, we do not risk going down the slippery slope of speech regulation.

It can be concluded that no illegality was committed on the part of Trump. Yet, just because an act is legal does not necessarily make it right or moral. The context surrounding the events is an important consideration. We have to ask ourselves what we expect of our leaders. In times of crisis and division, our political leaders should work to unite, not divide and calm tensions rather than inflame. As President of the United States, Donald Trump swore an oath to protect and defend the United States against enemies foreign and domestic. He may not have legally incited the violence, but by reveling in ambiguity and dog-whistling, his reckless and ‘unpresidential’ rhetoric was an inflammatory force in the unfolding and escalating Capitol Riot.

So where to from here?

Ultimately, it may not matter whether Donald Trump’s actions were legal or moral. Impeachment is a pseudo-legal political show in which the jury consists of partisan politicians who either love or hate Trump. In fact, an actual crime (as defined in criminal law) does not have to be committed for a President to be impeached. Therefore, impeachment is rather a process where politicians can signal their virtue, score more political points in their political games whilst further dividing the nation and delaying critical legislation and coronavirus relief. Ironically, Trump’s brash and abrasive entry into the US political sphere, in which he aggravated underlying political partisanship, may well be the cause of his conviction. Put another way by Akiva Cohen on Twitter:

“Impeachment is a political solution to a political problem. It should be reserved for truly heinous behaviour that harms the country. But ‘this wasn’t technically a statutory crime’ should play exactly zero role in that analysis”

The former President’s four-year term and dual impeachments expose the truth of politics: it is a world rife with division, hypocrisy, power plays and political manoeuvres. Conviction of impeachment may be an appropriate punishment for his involvement in the Capitol Riots, but every politician and prominent media figure also has to answer for their involvement in exacerbating the tensions and divisions in America. Ultimately, the responsibility falls on voters to elect officials who will genuinely represent their interests, promote bipartisanship and uphold the Constitution and The First Amendment at all times, not just when it is politically convenient. Only then can the ‘swamp be drained’.

Let me know your thoughts in the comments below! All comments will be answered by the original author of the post 🙂

Sources

Kim Iversen

“Trump Impeached for Using Democrat’s Own “Fighting Words””

https://www.youtube.com/watch?v=8gm7di8c6CM

“Establishment to Thwart Democracy Using Old Dictator Tactic”

https://www.youtube.com/watch?v=-ZH8y3sNt7g

Legal Eagle

“Incitement: Is the President Guilty of Inciting the Riot?”

https://www.youtube.com/watch?v=XwqAInN9HWI

CNN

“READ: The House of Representatives’ article of impeachment against Donald Trump”

https://edition.cnn.com/2021/01/11/politics/house-articles-of-impeachment/index.html

Legal Information Institute

“First Amendment”

https://www.law.cornell.edu/wex/first_amendment

“Forums”

https://www.law.cornell.edu/wex/forums

“Fighting Words”

https://www.law.cornell.edu/wex/fighting_words

Brookings

“Does impeachment require criminal behavior? In a word, “No””

https://www.brookings.edu/blog/fixgov/2020/01/29/does-impeachment-require-criminal-behavior-in-a-word-no/

Akiva Cohen

Tweet

https://twitter.com/akivamcohen/status/1348317786943205376

12 thoughts on “The Trial of Trump

  1. You mention context.. and you are correct. Over here most Conservatives defend their positions (and Trump) out of context. But to your point of free speech (as defined in America)…. is one of the Bill of Rights that sets limits on GOVERNMENT as it governs individuals. It is NOT some universal application for everyone being permitted to say anything. The old legal adage applies… freedom of speech does not include you screaming out “Fire!” in a crowded movie theater as a joke.
    Freedom of speech also does NOT remove a person’s responsibility, either socially, morally, or practically, for accepting whatever consequences result from what they say. In other words.. just because the Constitution gives you (so you think) the freedom to say anything you want, does not mean you SHOULD say anything you want in all situations. Example.. you can sit in your home all day long and dry fire the family AK-47 at your TV whenever the image of the Prez pops up. You go outside and mention to your neighbors or send a Tweet that you’d like to do that in real life.. now you’ve committed a federal crime. Context matters.
    Trump thoroughly enjoys how crowds react when he gives a speech. His ego thrives on that cheering and affirmation of what he says…. as president. What he didn’t always remember that his off-the-cuff remarks.. and constant Tweets when sitting on his golden toilet, is being taken seriously because he was president. When ANY president speaks everybody listens… and everyone parses what he says. It becomes history.. and his legacy.. whether he likes it or not… and millions will believe what he says.. and millions will be skeptical of what he says and interpret to their own agendas.
    I have oft made the comparison of any president’s “bully pulpit” in this way…. if you are elected president, and on your first day in office you mention that you are starting a “Pick-My-Nose on Tuesdays” organization, with with a website… you will immediately have 1 million members before the day is over.

    Make no mistake.. Trump incited the riot when he first set the plot before the election that unless he won it was going to be a fraud.

    Liked by 1 person

    1. Hi Doug,
      Thank you for your detailed response – I appreciated hearing an American perspective and I think there is a lot we can agree on. The argument I was trying to make was that legally I don’t think a court would accept Trump’s language as an incitement to violence, as political speech is the most protected type of speech in the eyes of the courts. Morally, however, I think Trump has plenty to answer for – he had been espousing election fraud claims for months prior to the Capital Riot and likely knew that his words on January 6th would be taken in many ways by his audience – some peaceful and some more sinister and violent. In other words, “he spoke from both sides of his mouth” as Kyle Kulinski puts it. I do believe he should face consequences for his role in promoting such claims and foregoing his responsibility as The President to whole-heartedly condemn the violence. But, I question whether Impeachment based on the charge of inciting insurrection is the best way to go about it. If we impeach Trump for his reckless use of “fight like hell” and his attempt to deny the democratic process, should we not apply the same punishment for other politicians who have done the same? For example, Maxine Waters, Democrat for California says: “If you see anybody from that cabinet, in a department store, at a gasoline station, you get out and make a crowd and you push back on them and you tell them they are not welcome”., which is arguably more direct and physical than Trump’s rhetoric. In this instance, her speech, seen online, in-person and on the television, could potentially incite violence against the Trump Administration and Trump supporters. How do we draw a line and distinguish between what constitutes incitement and speech that may be potentially unpopular and divisive in the political discourse? I disagree on the premise that Trump incited the riot when he first claimed that the election would be rigged. Incitement to violence requires an immediate risk of harm to another individual and thus I find it hard to link the beginnings of his fraudulent election claims with the subsequent riot. I think there are levels of accountability across all the branches of government and I believe that relegating the responsibility to one is individual will further divide and fails to acknowledge how many feel unrepresented, powerless and angry.

      Like

      1. You missed the point of my original reply entirely. Like the Trump defense people did with their clipped video of all the Dems saying “fight like hell” and the variants… you miss the point.. none of them were presidents.. and none of them had riots after their respective speeches. No comparison at all. Again.. just because you are free to say it does not mean you should say it. You must accept responsibility for the things you say.. any one of us does. What matters is the event/situations we might say it,,, and subsequent ramifications. It’s simple. Again.. any president carries with him/her the responsibility that what he/she says WILL carry far more impact than any of us saying the same thing. Yet again….. the First Amendment ONLY stipulates that government will not infringe on free speech by making laws. It does not mean you can scream “fire” in a crowded theater. Now.. regarding impeachment… it is NOT a court of law. It is totally a political remedy for allegedly incompetent or irresponsible behavior. This is what he is being judged on, and if guilty he does not go to jail. In this case any guilt will result in him not being able to run for public office in the future. I personally could care less if he ever runs again.. because between now and then he likely will die or be incapacitated for medical reasons, although he has little chance of winning anything anyway. I’m more interested in the Senate GOP people siding with the Q-ReTrumplicans.. and further violence.

        Liked by 1 person

      2. Hi Doug,
        Thanks for taking the time to reply. I’ve considered your argument and find that I’m in agreement that with more power comes more responsibility. I now see that Trump had a legal right to say what he said but it does not mean that he can shirk the political consequences of his actions and he should have thought about that before he said what he said. Thanks again for your contribution, it has definitely challenged me and given me much to think about. Regards, Oliver (Blog Guest Writer)

        Like

      3. Oliver… Good that you challenge and question. Not all that sure if you are also an Aussie as our host here, but I think sometimes a difference in perspective comes down to simply having a viewpoint from being outside the U.S. … just as we might find some Down Under ideas a tad difficult to place in context as Americans. Good exchange of ideas.

        Liked by 1 person

      4. Thank you Doug! It’s great to be able to use blogging as a way to connect with people around the world. It’s also great to hear opinions of those who may be more connected to an issue/event. Appreciate it!

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  2. Briefly, yes the U.S. Constitution, First Amendment, does protect the right to free speech. However, in my assessment, Trump’s speech not just on the day of January 6th, but in the months leading up to that disaster, did incite the masses who stormed the Capitol on that day. In addition, there is firm evidence that Trump’s campaign PAID some of those who organized the attack on Congress and the Capitol ( http://jilldennison.com/2021/02/11/follow-the-money/ ) Add to that the fact that the leader of a nation is, and ought to be, held to a higher standard than the average citizen, and I can see no other option than to find Donald Trump guilty as charged.

    Liked by 1 person

    1. Hi Jill, Thanks for your informative comment. My perspective towards this trial has shifted after considering what Doug had to say and from the arguments presented by the House Managers. I agree that with greater power comes more responsibility and to that extent, Trump should have been far wiser with what he had to say. Doug also encouraged me to look at the broader context and so I agree with your viewpoint. This was the first article I’ve written and in the future I hope to make my argument more robust and clear (and potentially wait for the trial to play out before finalising my argument). Thanks for sharing your insights, Oliver (Blog Guest Writer)

      Liked by 1 person

      1. Just be yourself and say what you feel, Oliver. None of us have all the answers…. and those who say they do.. in fact, don’t. 🙂 By the way.. I usually have all the answers, but usually my TV hears them. 🙂

        Liked by 1 person

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