Impeachment, Incitement and What (Nearly) Happened on January 6th

Although President Donald Trump is often criticized for not having a fully-thought-through plan for some of his initiatives (such as his nuclear diplomacy with North Korea or the repeal of Obamacare) we may be selling him short with respect to the events of last week.

On November 23, 2020, I wrote for TIME magazine,

The period from now until December 14 is the period that most people are focusing on and rightly so. December 8 is the deadline for resolving election disputes and completing any state recounts and contests, and December 14 is the day the electors meet in each state to vote and execute their ballots. But the subsequent period from the 14th to January 20 may be even more fraught.

What I feared was that “emergency powers might be invoked in an attempt to halt temporarily the certification of presidential electors for the duration of the emergency.”

What could the president have done to upset the steady progress toward the inauguration of Joe Biden? His efforts to cajole, intimidate, and coerce various officials to stop or overturn the certification of electoral slates failed. He was unable to pressure his vice-president to act unconstitutionally. What exactly did the president have in mind when he called for a gathering in Washington, and a march on the Capitol?

It can’t have simply been the coercion of the two Houses meeting to accept the electoral slates presented and certified by the states. No demonstration—no riot—could have done that. Chaos and mayhem might have temporarily interrupted proceedings by our representatives but they wouldn’t have changed any votes in Trump’s favor, indeed quite the contrary.

No, I believe it’s more plausible that the president wanted further confrontation— the more violent, the better. What he’d hoped for was an excuse to declare an emergency, evacuate the Capitol, halt all proceedings and even invoke the Insurrection Act. This is why once the demonstration turned violent and the Capitol itself was attacked, the president studiedly did not call for his supporters to cease the “home invasion” of America’s historic house of representative government. His refusal has baffled many of his admirers and officials, but it was really quite essential if his most desperate hopes were to be realized.

Why did the situation in fact fail to provide the conditions for such an exercise of executive power? Partly because left-wing counter-demonstrators exercised maximum self-restraint and refused to be drawn into a confrontation. Indeed, it is reported that Trump “initially rebuffed and resisted requests to mobilize the National Guard” after the Capitol was under siege doubtless because he was waiting for even more violence to ensue. And partly, too, because the Pentagon did not rapidly escalate with much larger forces, for which they are now being criticized.

Someday we will know if my speculation is correct because we will find—or not find—documents such as draft orders that would have been issued by the president. I should be surprised if steps have not already been taken to destroy such documents, but as we know from the Iran-Contra Affair, such steps are difficult to execute perfectly and without perfection, the evidence eventually emerges. Perhaps Trump’s closest confidantes and aides will someday disclose the president’s plans. In the meantime, we can be thankful that he was thwarted, and we should take steps to ensure that such a close-run-thing does not happen again. This means renewed attention to the problem of the continuity of government.

I have little doubt that many people will file the president’s behavior on Wednesday under the subject heading, “President summons march on Capitol—political demonstration gets out of hand.” That would be a profound mistake. Of course the president didn’t intend that the mob he incited would actually compel the members of Congress to change their votes to certify presidential electors; his supporters are right about that. But I fear that what he did intend was just as sinister and far more threatening to our constitutional institutions.

One need not accept my account of these events to determine whether Trump’s actions constitute an incitement that is subject to impeachment. We already know he inflamed an angry mob to confront the members of Congress and exhorted them to march to the Capitol in an attempt to overturn the legitimate results of an election. Regardless of his precise motives, the president’s reckless actions led directly to an attack on the seat of government and on the peaceful transfer of power.

As far as I am aware, there is little discussion in the standard impeachment literature about presidential incitement. An exception can be found in the 2018 edition of Impeachment: A Handbook (Charles L. Black & Philip Bobbitt: Yale University Press). It reads:

Incitement

It is an open question—but not one that we lack the methods to answer—whether incitements to violence against protestors, the news media, ethnic or religious groups, or members of the bureaucracy and the judiciary amount to “high Crimes and Misdemeanors.” I suppose it would depend on the consistency and persistence of the incitements, the practical effects on the body politic of such septic exhortations, and even the seriousness with which they are made (and taken). Such a fact-centered inquiry is analogous to the investigation of a president’s motives to determine whether he has committed bribery. In both cases, the same acts might or might not serve as a valid predicate for impeachment, depending on context and circumstances. It would be primarily a prudential constitutional inquiry, examining the practical effects of such incitements and whether they put the country at risk of civil conflict. We have never had to confront such a possibility, but the increasing vituperation of public life and the lack of scruple with which accusations are made from many quarters can create an atmosphere in which a president who both contributes to and benefits politically from this debased condition might be removed from office after a historic tragedy.

Editor’s Note: Readers may also be interested in Frank O. Bowman,  The Constitutional Case for Impeaching Donald Trump (Again)

 

About the Author(s)

Philip Bobbitt

Herbert Wechsler Professor of Federal Jurisprudence and Director of the Center for National Security at Columbia Law School and Distinguished Senior Lecturer at the University of Texas