INCITEMENT OR NOT? – OVERNIGHT:  The Democrats have finished delivering their impeachment case against former President Trump.  It centers on the charge of incitement.  Did they make their case?   Former prosecutor Andrew McCarthy analyzes.  From Fox: 

In an incitement case, the issue is what the accused says, not how the mob hears it. Indeed, that is always the First Amendment analysis. If what a person says is constitutionally protected expression, we protect the speech and we don’t give the heckler – or the rioter – a veto.

Rep. Madeleine Dean, D-Pa., one of the House impeachment managers, noted on Wednesday afternoon that, 15 minutes into his Jan. 6 Ellipse speech, then-President Trump asserted that he knew the crowd was about to march peacefully on the Capitol.

She grudgingly conceded that this was "one of his defenses" to the incitement charge. In point of fact, it would be a complete defense to an incitement charge if a prosecutor brought one in a real court, which would be inexplicable on the evidence the House managers are presenting.

Obviously aware of this inconvenient problem, Congresswoman Dean instantly pivoted from what Trump said to the belligerent threats being simultaneously chanted by some elements of the crowd (a crowd that numbered in the tens of thousands).

In a real criminal case, a defendant may not be convicted unless the prosecutor proves beyond a reasonable doubt that the defendant had bad intent.

In Trump’s case, that would be intent to cause a violent attack on the Capitol. If what Trump said did not constitute incitement in the criminal law sense – i.e., clearly intentional and unambiguous solicitations to violence that was imminent and probable – then the failure to establish criminal intent cannot be repaired by showing that other people had criminal intent.

If you argue that Trump engaged in utterly irresponsible rhetoric, I’m right there with you. If you contend that it is an impeachable dereliction of duty for a president to intentionally mislead the public about the election and, especially, to aggressively pressure public officials – the vice president and the Congress – to take unconstitutional actions (viz., to reject the state-certified election results that established now-President Biden as the winner of the election), I would agree with that, too. And I myself have posited that the most impeachable conduct by the president was his dereliction of duty as commander-in-chief in failing to act while the Capitol was under siege.

The problem is that the House did not file such articles of impeachment. They accuse Trump of inciting insurrectionist violence at the Capitol.

COMMENT:  Read the rest.  It's a fascinating analysis that by no means excuses some of Trump's vociferous behavior, but makes clear that the Dems failed to make their point on the incitement charge.

February 11, 2021