‘Inciting Insurrection’ Impeachment Articles Against Trump Introduced

Here we go again.

The House of Representatives is starting the process for impeaching President Trump a historic second time.

CNN (“House Democrats introduce impeachment resolution, charging Trump with ‘incitement of insurrection’“):

House Democrats formally introduced their resolution to impeach President Donald Trump on Monday, charging him with “incitement of insurrection” for his role in last week’s riots at the US Capitol.

The impeachment resolution that the House is poised to vote on later this week is the Democrats’ first step toward making Trump the first president in history to be impeached twice.

The single impeachment article, which was introduced when the House gaveled into a brief pro-forma session Monday. points to Trump’s repeated false claims that he won the election and his speech to the crowd on January 6 before pro-Trump rioters breached the Capitol. It also cited Trump’s call with the Georgia Republican secretary of state where the President urged him to “find” enough votes for Trump to win the state.”

In all this, President Trump gravely endangered the security of the United States and its institutions of Government,” the resolution says. “He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.”The resolution also cited the Constitution’s 14th Amendment, noting that it “prohibits any person who has ‘engaged in insurrection or rebellion against’ the United States” from holding office.

House Speaker Nancy Pelosi told House Democrats on Sunday evening that the House would proceed with bringing an impeachment resolution to the floor this week unless Vice President Mike Pence moves to invoke the 25th Amendment with a majority of the Cabinet to remove Trump from power.

Pelosi’s letter was the first time she explicitly said that the House would take up impeachment on the floor this week, though it was clear that House Democrats have rapidly coalesced around an impeachment resolution in the days following the riots at the Capitol where five people died, including a US Capitol Police officer.

As noted previously, my strong sense is that Trump’s speech ahead of the rioting does not meet the high threshold set by the Supreme Court for “incitement.” Legal scholars, including Eugene Volokh, have reinforced this view.

Similarly, while I have studied the concept in much less depth than I have the 1st Amendment, I’m skeptical that Trump is guilty of “insurrection” as defined in either the 14th Amendment or federal statute. There’s a much better argument for “seditious conspiracy,” but I’m frankly skeptical of the broadness of that language and the potential for abuse that creates.

Regardless, impeachment is a political process, not a legal one. While private citizen Trump has incredibly broad rights to speak foolishness, President Trump has a sworn duty to protect the Constitution, safeguard our elections, and ensure a smooth transition of power. He has done the opposite. He certainly merits further ignominy, including removal from office, for his condut.

FILED UNDER: Donald Trump, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. mattbernius says:

    I am truly wondering what McConnell’s angle on this will be. I expect that, unless Trump makes a major misstep (or there isn’t another major act of insurrection), he will be able to delay the trial until after the inauguration. That’s definitely a win for him because it’s going to bog down the first 100 days.

    Actually convicting Trump, post-election (when it’s also all the Dem’s faults–not to mention retiring GOP senators plus Romney and the “moderates”–for having both of the GA senators seated) effectively neuters Trump going forward and clears the slate for 2024.

    I think it’s still a heavy lift for the GOP and McConnell unless Trump self-pardons and then I think 100% he’s convicted. Honestly, that seems the best scenario politically, as there will be no Federal Investigation of Trump AND the GOP senators can express moral outrage.

    1
  2. Andy says:

    Hopefully, the House votes on it soon. McConnell will almost certainly slow-roll until the inauguration and then declare it OBE. And, as a practical matter, it would be difficult for the Senate to do all the necessary work in time even if they were motivated to do so. That’s shouldn’t be used as an excuse to stop the House from doing their part.

    5
  3. Sleeping Dog says:

    The Senate is out of session till 1/19 and McConnell is using this as an excuse not to take up impeachment till then. This assumes that the House presents the articles to the Senate before the 19th.

    After that it becomes Schumer’s issue. It has also been suggested that the House will delay formally submitting the articles for a few months, in order to allow Biden to launch is program.

    A rough count is that currently their are ~6 R’s who’ve indicated some type of support. That can grow significantly if the party decides it is best to rid themselves of Trump.

    1
  4. CSK says:

    And Trump is going to Alamo, Texas, tomorrow, where I’m sure he’ll try his damnedest to incite more insurrection.

    6
  5. Jay L Gischer says:

    I saw the 60 Minutes interview of Nancy Pelosi – it’s worth it for what they describe about Wednesday – and she shares my view. A self-pardon is not the most worrisome scenario, a pardon of everyone involved on The Day of Broken Glass is.

    7
  6. Michael Reynolds says:

    Dems are actually considering passing impeachment through the House then holding off on submitting it to the Senate. So it would be Chuck Schumer’s call, not McConnell’s.

    13
  7. Jay L Gischer says:

    @Michael Reynolds: You know, I wonder if there aren’t some process levers that Schumer can pull that would make those proceedings even more painful and difficult for R Senators. And that this is a bargaining position?

    I mean, what witnesses could be called? How embarrassing could this get?

    3
  8. dazedandconfused says:

    @Michael Reynolds:

    Assuming Mitch is re-elected minority leader, which seems sure, in a way this will still be Mitch’s call. He can allow enough Rs to vote for impeachment and remove Trump from the 2024 race or he could threaten fire and brimstone on any senate R who votes for it and keep Trump in the game. I can’t guess which way Mitch will go on that. Getting Trump banned from running for office will be tough on every R who votes for it and Mitch will not escape the fire.

    1
  9. Not the IT Dept. says:

    Well, if last week’s insurgency wasn’t enough for some people, maybe this will do it:

    @FBI now reports in a bulletin “Armed protests are being planned at all 50 state capitols from 16 January through at least 20 January, and at the US Capitol from 17 January through 20 January,”

    and

    The FBI has “received information about an identified armed group intending to travel to Washington, DC on 16 January. They have warned that if Congress attempts to remove POTUS via the 25th Amendment a huge uprising will occur,” according to a bulletin obtained by @ABC

    Source: https://twitter.com/AaronKatersky

    I live on the outskirts of my state’s capital. Going to be interesting.

    8
  10. Kathy says:

    @Jay L Gischer:

    You know that a normal psychopath wouldn’t issue such a pardon, because it would damage his credibility. Trump, on the other hand…

    As to the timing, it’s nine days to Biden’s inauguration. I don’t think that’s enough time for a trial, even with an open and shut case. Less so since impeachment won’t be voted on for two more days.

    Past inauguration, there’s no urgency to remove the Orange Lump, as he’ll be out already. Therefore it makes sense for Schummer to delay it a few months while the Senate engages in more urgent matters.

    Pas this, any predictions are highly speculative. Much depends on what One-Term Loser does between now and the inauguration, plus what his cult does, and then what they do afterwards. You’d think any GOP 2024 hopefuls would like nothing better than to see Trump retired from politics, but it’s not that simple.

  11. PJ says:

    @Jay L Gischer:

    A self-pardon is not the most worrisome scenario, a pardon of everyone involved on The Day of Broken Glass is.

    But the right-wing say that the people storming Congress were antifa, why would Trump pardon antifa? Is Trump antifa?

    It’s all so very confusing. 😉

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  12. CSK says:

    @Not the IT Dept.:
    This January 17 “armed march” on D.C. and the state capitals appears to have been organized by something calling itself Gun and Game.

    2
  13. Joe says:

    The one benefit of the HoR voting out impeachment and promptly sending it to the Senate is that, if Trump does something else with his office before the inauguration, it is on the Senate, not on the House. If the House sits on the mandate, there was nothing the Senate could have done. It also doesn’t sit well that this is a big emergency because Trump’s an imminent danger to all, but let’s wait till after inauguration to deal with it.

    4
  14. wr says:

    @dazedandconfused: “He can allow enough Rs to vote for impeachment and remove Trump from the 2024 race or he could threaten fire and brimstone on any senate R who votes for it and keep Trump in the game.”

    He could… but he was spectacularly unsuccessful at keeping several R senators from trying to overthrow the election, and I suspect that failure makes him look a lot weaker than he did a month ago. Hawley and Cruz haven’t backed down yet, and what has McConnel done to them? Zippo. Yes, it’s true that if you strike at the king you’d better not miss… but it’s also true that if you do strike at the king and miss, he’d better strike back hard… or it’s just like you hit him.

    3
  15. dazedandconfused says:

    @wr:

    The fire and brimstone stems from the Trumpican mob. He can only choose to wield that against those who are against Trump, not against those who are for Trump. Mitch will be forced to choose a side, I don’t think this is a fence that can be straddled. Not anymore.

    2
  16. inhumans99 says:

    @dazedandconfused:

    Here’s the thing, if the GOP still wants to back the horse named Trump I say let them do it. Whether the impeachment process is completed before Biden’s swearing in or after it will still be an uncomfortable vote for the GOP and so what if Trump is not convicted, at the end of the day unlike the last impeachment where he was able to laugh at us silly Liberals and walk back into the WH to tweet away he will not be able to do that this time around.

    Again, if the GOP wants to hold water for Trump for fear of what he might do to them in 2024, well…they will do what they plan to do regardless of what I think the GOP should do about the Trump problem.

    I am still not so sure that Trump will not be in jail before 2024 rolls around, and if the GOP wants to turn to the only President in my lifetime to attempt a Coup to get them re-elected in 2022/2024 I say let them. Everyone in the GOP thinks they are Teflon Don’s but that is far from true, and even a half-assed effort by Democrats to remind the country of the GOPs looking the other way while Trump worked behind the scenes to gin up an insurrection should put the GOP in an uncomfortable spot as they campaign to get re-elected.

    I get it…everyone says the Dems are the party of folks who have mastered how to snatch defeat from the jaws of victory, but this time things feel…different.

    2
  17. Sleeping Dog says:

    McConnell is like Arafat at Tãbã, it’s time sh#t or get off the pot.

    1
  18. JohnSF says:

    @PJ:
    Ah, you’re clearly not up to date.
    The latest line is that the peaceful crowd were sweet, innocent MAGAe, who were lured in by Deep State actors posing as police who opened the barriers.
    So they can’t be considered as mobbing the Capitol when they were invited in!
    And then the Antifa infiltrators did their nefarious deeds.
    Poor, innocent, peaceful, beguiled Trumpkins!
    🙂
    Ride that Crazy Train to Crazy Town!

    2
  19. dmichael says:

    The fact that there are several Repubs calling for “unity” and whining that impeachment will “divide us” means that they don’t want to be in the position of explicitly excusing Trump’s most recent behavior (not that several of them won’t attempt to do so). That is the first reason to file impeachment articles. The second is that it confronts Pence with the choice of trying to use the procedure in the 25th Amendment or knowing that Trump will be impeached (210 Dems have signed on to the HR). Citizen Pence will be called to testify at the Senate trial whenever it occurs. I can’t imagine that he would look forward to that even though Trump put Pence and his family at risk of serious injury or death. Third, it is the right thing to do (even though Dr. Joyner wastes the first part of this post with the irrelevant claim that Trump’s actions don’t meet the threshold for convicting him of certain crimes). This is the ONLY leverage the Democrats have to try to prevent Trump from committing more crimes, starting a war and throwing out pardons like its Christmas during the next 9 days. Democrats need to act now before the armed Trump mobs create more violence at state capitols and Capitol Hill.

    4
  20. Kathy says:

    I’ve a question.

    We all know a trump pardon (TM) does not cover state charges. Does this apply to local DC charges as well?

    The DC Attorney General is doing his own investigation on the January 6 Putsch. He could charge Trump as well as others.

    4
  21. HarvardLaw92 says:

    @inhumans99:

    The retort will be “he has already left office, so there is no point in voting to remove him”. I agree that it is absolutely critical that these articles of impeachment be presented to the Senate while he is still in office. Leave them no escape route.

    4
  22. Gustopher says:

    From WaPo, an interview with now-former Capitol Hill Police Chief Sund.

    To be on the safe side, Sund asked House and Senate security officials for permission to request that the D.C. National Guard be placed on standby in case he needed quick backup.

    But, Sund said Sunday, they turned him down.

    … [Wednesday]

    The first wave of protesters arrived at the Capitol about 12:40 p.m.
    “As soon as they hit the fence line, the fight was on,” Sund said. “Violent confrontations from the start. They came with riot helmets, gas masks, shields, pepper spray, fireworks, climbing gear — climbing gear! — explosives, metal pipes, baseball bats. I have never seen anything like it in 30 years of events in Washington.”

    “I realized at 1 p.m., things aren’t going well,” he said. “I’m watching my people getting slammed.”

    Sund immediately called Contee, who sent 100 officers to the scene, with some arriving within 10 minutes. But at 1:09 p.m., Sund said he called Irving and Stenger, telling them it was time to call in the Guard. He wanted an emergency declaration. Both men said they would “run it up the chain” and get back to him, he said.

    Minutes later, aides to the top congressional leaders were called to Stenger’s office for an update on the situation — and were infuriated to learn that the sergeants at arms had not yet called in the National Guard or any other reinforcements, as was their responsibility to do without seeking approval from leaders.

    Sund said he called Irving twice more and Stenger once to check on their progress. At 1:50 p.m. — nine minutes before the Capitol was breached — Sund said he was losing patience.

    Assuming Sund has the phone records to back him up, Irving and Stenger got some ‘splaining to do. I lean towards colossal fuck-up and refusal to take threats from the right seriously, but this would also be consistent with orders to keep the soldiers in their barracks during a coup attempt. I am hoping we get clear evidence of a colossal fuck-up.

    4
  23. flat earth luddite says:

    @Gustopher:

    I lean towards colossal fuck-up and refusal to take threats from the right seriously

    I’m sure those in the group with military/LE experience can attest to having served under leadership who would not take any action that might have blowback without express authority from above. I strongly suspect Messrs. Irving & Stenger fall in that group. Leaders (using the term loosely) who were, when push came to shove, far more Mayberry Barney Fife than High Noon Sheriff Kane.

    3
  24. Barry says:

    @flat earth luddite: The thing is, in the end Trump incited a riot against Congress, and then the Federal forces slow-walked protecting them.

    Screw-up or deliberate? That’s for those guys to prove.

  25. OzarkHillbilly says:

    @Gustopher:

    I am hoping we get clear evidence of a colossal fuck-up.

    That’s been settled fact ever since the mob got in. The only question now is exactly who is/are the colossal fuck-up/s.

  26. dmichael says:

    @Kathy: Interesting that you asked. I used to be an attorney and asked my wife who still is, about the criminal court structure in D.C. Our quick and dirty research suggests that federal offenses, and local felony charges are prosecuted by the United States Attorney for the District of Columbia, appointed by the President. It appears that almost all of the conduct by the mob were felonies. I assume that incitement to insurrection (or however the crime is characterized) would be a felony. So it appears that IF self-pardons are legal, Trump could prevent anyone from charging him with that crime. Please note that “pre-emptive” pardons (Ford to Nixon) and “self-pardons” have never been tested in court.

    2
  27. Pylon says:

    I would have liked to have seen Trump’s interference in the GA election, both his calls with the SoS and with the investigator, included. But perhaps they are seen as part of the big lie that got them to Jan. 6.

  28. Kathy says:

    @dmichael:

    Thanks.

    One more reason why DC should be a state.

    2
  29. Kathy says:

    An awful lot of Republican politicians are still propagating the “election integrity” meme.

    In a way this is not new. they’ve been guarding against non-existent electoral fraud for years. Or, rather, they’ve been engaging in voter suppression tactics justified as guarding against (non-existent) electoral fraud for years. They can’t back down now.

    But it’s one thing to say “we need to protect against electoral fraud,” and quite another to say “we wuz robbed!” as they seem to, politely, imply happened this year.

    let alone the lack of evidence. The fact that only a few GOP senators voted in favor of electoral challenges speaks volumes about what they really believe. The Republicans in the House made a better pretense of believing their own lies, contradictions and all.

    the bottom line is the US electoral system is so decentralized, any kind of massive fraud like the one Trump is deluded about, is simply not possible. It’s not even centralized at the state level, not even for the count. Each county, a far as I can tell, makes its own count and reports it.

    It’s not that it’s physically impossible to game that system, but that you’d need people in literally hundreds of places to be able to pull it off. Try to run a criminal conspiracy that way.

    Any Republican serious about national unity and reconciliation has to begin by disowning Trump’s lies, and recognizing the Biden and Harris were legally, legitimately, freely, and fairly elected. Otherwise they’re just trying to get away with insurrection and division.

    2
  30. Gustopher says:

    @Kathy:

    The fact that only a few GOP senators voted in favor of electoral challenges speaks volumes about what they really believe. The Republicans in the House made a better pretense of believing their own lies, contradictions and all.

    The House is up for election a lot more often. And a lot of the House is younger than the Senate, and generally more ideologically extreme (smaller districts where there are no urban centers). I don’t think it’s a pretense. They just believe their own lies.

    2
  31. Michael Reynolds says:

    CNN is reporting that up to 15 Capitol Hill police are under investigation, and one has been arrested.

    5
  32. David S. says:

    @Pylon: Read the first 7 lines of page 4? The Articles of Impeachment aren’t long or convoluted; it takes maybe a minute to get through it.

  33. Gustopher says:

    @Michael Reynolds: Link?

    I just see I see articles about two police suspended, with only one explained — taking selfies with people in the crowd (Is it a protest, a riot or an insurrection? I think all three, overlapping, and depending on what the officer sees around him it changes the offense from inappropriate to giving aid and comfort to terrorists).

  34. Flat Earth Luddite says:

    @Gustopher:
    Fyi, at least two Seattle police offers are suspended pending investigation of their involvement in the Washington DC protest; their union chief is under pressure to resign due to his comments.