By John A. Sparks

The House of Representatives, with the sole responsibility of impeachment, has passed a single Article of Impeachment charging President Donald Trump with committing a high crime, namely that he “made statements that encouraged — and foreseeably resulted in — imminent lawless action at the Capitol.” In short, his rally speech, it is claimed, amounted to “incitement to engage in the insurrection.”

The Senate’s constitutional responsibility is to try the president to determine if he is guilty of the criminal act alleged. From the start, the charge of “inciting an insurrection” will run headlong into the half-century-old case of Brandenburg v. Ohio and the First Amendment free speech clause. In Brandenburg, the court reversed the criminal conviction of Clarence Brandenburg, even though he made highly inflammatory anti-Semitic and anti-black statements at a KKK rally and despite the fact that he suggested the possibility of what he called “revengeance” toward these minority groups. Underlining its unanimity, the Supreme Court issued a per curiam opinion. It said that for the cherished right of First Amendment free speech to be considered criminal it must be “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Though Brandenburg’s statements were reprehensible, said the court, they did not constitute criminal conduct.

Therefore, operating within the framework of Brandenburg, the senators today sitting in judgment of Donald Trump should ask two fundamental questions. First, what did the former president actually say in his rally speech? Secondly, do his words show his intent to incite imminent lawless action?

Frankly, reading the complete transcript leaves one puzzled by the smug attitude of some media headlines and commentators that an incitement conviction is a sure thing. Where in that admittedly lengthy harangue against the election results is one able to find specific language of an urging, a persuasive call, to engage in lawless acts? Most of the rally speech is devoted to claims of election fraud as well as complaints about some states illegally changing election procedures without legislative approval. Trump repeated these very same things for weeks following the election. The rally statements were nothing new nor were they more volatile in form or content than what the president had publicly said before.

In the speech, the president states his view of the political purpose of the rally. Here is the gist of it: “Now it is up to Congress to confront this egregious assault on our democracy. After this [the rally], we’re going to walk down … We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women.” This falls far short of an incitement to violence.

Trump continues, “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated. … I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” This is nothing more than calling upon those assembled who have a disagreement with some electoral slates to make their voices heard by peaceful protest and demonstration.

President Trump then made his summation:

So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we’re going to the Capitol and we’re going to try and give — the Democrats are hopeless — but we’re going to try to give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re going to try and give them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue. I want to thank you all. God bless you and God bless America.

This is once again counseling supporters to stand with those in office who are challenging the validity of some of the state electors, and in that way, undoing an unfair election. Some may seize upon the phrase “take back our country” as a call to lawless action. There is no basis for that. Speeches using exactly the same phrase have been made by none other than Joe Biden, Hillary Clinton, and Barack Obama. The phrase refers to politically turning policies in a certain direction. The same is true for the word “fight” used by President Trump and other politicians. It is not a call to take up arms, but to battle within the confines of political campaigns and elections. These are not incitements to violence and no self-respecting prosecutor would bring an incitement case against a political officeholder who used those words to rally his supporters.

Notably absent from the speech are expressions from the president like “close down the proceedings,” “stop them whatever it takes,” “seize power.” One searches the language of the president in vain for statements urging the violent overthrow of a duly constituted government which is the very definition of insurrection.

Let’s be clear. Did an insurrection occur? Yes, it did, and it is worthy of unqualified condemnation and the abhorrence of all Americans. But, were the words used by the president actually to blame for inciting a limited number of those attending to breach police lines, to unlawfully enter the Capitol, destroy property, kill a law officer, and threaten legislators? If senators interpret “high crimes and misdemeanors” to mean that the elements of the crime of incitement must be proven, then (using that standard) a conviction should not be sustained.

There is another approach advocated by some senators. Can’t a president be removed from office for something that “violates the public trust,” to use the words of Hamilton in Federalist 65, when the elements of a crime would be difficult to prove? That question was debated by the Founders in the Philadelphia Constitutional Convention. They asked: would something short of criminal conduct such as “neglect of duty” or “maladministration” be grounds for an impeached president to be convicted? What we know is that the Convention rejected those broader formulations and maintained the language of “high crimes and misdemeanors.” Nevertheless, the debate has continued in subsequent impeachment trials. Can a president be removed from office for something that less than criminal conduct? The most recent example of this more expansive view of an impeachment ground was found in the first set of impeachment Articles against President Trump alleging a general “abuse of power.”

What is clear is that senators on both sides of the aisle should put aside their own narrow political interests in the hyped-up atmosphere of “punish Trump” or “disable him from running again.” They should state forthrightly the ground or grounds upon which they are relying and vote accordingly. Some senators will rely upon the standards provided by Brandenburg and the First Amendment. Others will take a broader view of what constitutes an impeachable offense. We will find out soon enough.

Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for Institute for Faith and Freedom. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor of articles based upon U.S. Supreme Court developments.