Donald Trump’s best defence against the impeachment charges he faces is simply to point out that he is being tried in the Senate and not a court of law. Incitement to insurrection is a serious federal crime liable to up to ten years in prison, so why hasn’t Trump been arrested? The purpose of impeachment may be to prevent him from running for office again, but he would also be prohibited from holding public office if he were criminally convicted of incitement. The answer, of course, is that Trump is not guilty of incitement and could not be proven guilty in a court of law.
Trump’s infamous speech on January 6th is the target of accusations of inciting the riot, but investigators have already discovered that the Capitol Riot was planned weeks in advance of his speech. The first protestors to begin breaching the Capitol’s defences were not at Trump’s rally, and they began their incursion twenty minutes before Trump’s speech ended. Trump’s speech cannot be accused of inciting something that was planned in advance and was begun by people who never heard his speech. Quotes such as “…you’ll never take back our country with weakness. You have to show strength, and you have to be strong” have been pointed to as tacit encouragement of violence. But the preceding sentence debunks such a claim: “We’re going to walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women”, there is nothing violent about cheering on the congress people who are challenging the eligibility of electors. A few sentences later he instructs them to march to the Capitol building to “peacefully and patriotically make your voices heard”. One quote which is included in the articles of impeachment is: “And we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore”. This is clearly metaphorical. Throughout his speech Trump refers to fighting, but only in a metaphorical sense, not a literal one. For example, he refers to Republican Congress people “fighting” for a fair election result: “We have great ones, Jim Jordan, and some of these guys. They’re out there fighting the House. Guys are fighting, but it’s incredible”. Other than the usual bombastic rhetoric common to most political speeches, there is nothing in his speech which explicitly or implicitly calls for violence, though he explicitly calls on his followers to remain peaceful.
Others have suggested that Trump’s rhetoric prior to the day foreseeably led to the violence on the day. They claim that his unproven accusations of widespread voter fraud and election impropriety incited the violence on the day. However, such a tenuous assertion would never hold up in court. Just one month after Bernie Sanders said that the Republican Healthcare plan would kill people, a former Sanders campaign volunteer, James T. Hodgkinson, opened fire on a group of Republican politicians and staffers at a charity baseball game, injuring Representative Steve Scalise, two staffers, and a police officer. Hodgkinson was unemployed and down on his luck financially, perhaps he couldn’t afford health insurance and took his anger out on Republicans who opposed universal healthcare. Can Bernie Sanders be held responsible for how Hodgkinson reacted to his inflammatory rhetoric? No, Sanders was merely expressing his opinion and he cannot be held responsible for how people may react to his opinion. The same can be said of Trump’s accusations of election fraud.
Trump is being tried in the Senate because he cannot be tried in court. He is not guilty of inciting an insurrection and such an assertion would not hold up in a court of law. The Democrats know this. They also know that the Senate will not find him guilty. The impeachment trial is nothing more than political pageantry. They are honing a stick with which to beat the Republicans. When the Senate finds him innocent, the Democrats will spend the next few years demonizing the Republicans for voting “not guilty” and using it as an excuse to force through legislation without bipartisan negotiation and cooperation.