By Doctor Michael Herron
Friday 29th January 2021
“A House Divided Against Itself Cannot Stand”
In a little over a week’s time the US Senate will assemble for a second time under the auspices of the Chief Justice of the Supreme Court to try Donald Trump for impeachment. The Democrats need 17 Republican Senators to join with them in order to reach the 2/3 majority needed to convict Donald Trump. As it stands it appears an insufficient number of Republican Senators are prepared to convict Donald Trump. This article will attempt to persuade them why it is their solemn duty under the Constitution as the Founding Fathers intended that they should join Democrats to convict Trump for “inciting insurrection against the United States government.”
Before addressing the charge levelled against Donald Trump and how it corresponds to the US Constitution, it is perhaps necessary to examine the concerns of the Founding Fathers when they were drafting the Constitution. It is important to acknowledge that the Founding Fathers, especially James Madison and Alexander Hamilton were schooled in a classical education. The example they drew upon to establish the new republic was Ancient Rome. They remembered from their studies how the Roman Republic fell to be replaced by first a dictatorship and then an empire and they did not want the same fate to befall the American republic.
Madison and Hamilton learned the lesson of Ancient Rome that the Roman Republic fell because of the rise of a demagogue, Julius Caesar, who whipped up the mob to win election as consul. Latterly, he led the army in Gaul (France) that had been assigned to him as consul across the Rubicon, the stream that marked the border of the Roman Republic, to march on Rome. Once in Rome Caesar made himself dictator with the Senate theoretically as rubber stamp to his whims.
It was with the example of Caesar in mind that the Founding Fathers attempted to establish safeguards to prevent a similar demagogue using the office of the presidency to stir up the people to overthrow the legislative institutions of the republic: the House of Representatives and the Senate. Fear of populism is one reason why they also established the electoral college because they were concerned that the populations in the cities were more prone to populism than the farmers and landed gentry of the countryside. That is one reason why even today the electoral college has a rural bias over cities.
The events of 6th January when Donald Trump allegedly incited a mob to attack Congress to overthrow the result of what the courts have ruled to be a free and fair election is exactly the kind of incident that Madison and Hamilton envisaged as grounds for impeachment under the Constitution.
The House of Representatives has charged Donald Trump with committing high crimes and misdemeanours which constitutes grounds for impeachment under Article II Section 4 of the Constitution. However, Article II Section 4 states that committing treason against the United States government is also grounds for impeachment. Although the charge against Trump does not specifically accuse Trump of treason, stirring up a mob to attack one of the branches of government is, arguably, a prima facie treasonous act.
There are some apologists for Trump, including some lawyers, who claim that Trump’s words on 6th January to the crowd assembled on the Mall were sufficiently vague that they could not be interpreted as inciting an insurrection, and in any case, Trump was merely asserting his First Amendment right to free speech. Let us examine what Trump said in his speech to “Stop the Steal” demonstrators on the Mall before they marched on the US Capitol with deadly consequences.
Firstly, he tells the crowd “and to use a favourite term that all of you people really came up with we will stop the steal.” In this instance, according to Aaron Blake of the Washington Post, Trump goes beyond “raising doubts about the legitimacy” of the election to say that “it has been deliberately stolen.” He then tells the crowd, “the stolen election will be stopped.”
Trump tells the crowd, “Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice we want to be respectful of everybody including bad people. And we’re going to have to fight much harder.” Here Trump manipulates the crowd by casting Republicans as good people and Democrats as evil “bad people.” According to Blake, he had previously said that Democrats would “fight like hell” if the situation was reversed and that the Republicans need to “fight harder.” Admittedly, he does not tell the crowd to use violence but in Blake’s words “he tells them that more extreme measures need to be used and they are not being undertaken.”
Trump then refers to a conversation he had with Vice President, Mike Pence. “I said Mike that doesn’t take courage…..what takes courage is to do nothing. That takes courage and here we are stuck with a president who lost the election by a lot and we have to live with that for four more years. We’re just not going to let that happen.”
This statement by Trump is essentially false saying that Pence could do something to prevent the results from the different states being certified when legal scholars agree that he could not do anything. Trump then goads the crowd to do something it could not legally do to stop the votes from being certified.
Trump then calls on the crowd to descend on Capitol Hill. “After this we’re going to walk down and I’ll be there with you. We’re going to walk down… we’re going to walk down to Capitol Hill and we’re going to cheer on our brave Senators and Congressmen and women and we’re probably not going to be cheering for some of them. Because you’ll never take back our country with weakness. You have to show strength and you have to be strong.”
Here is a clear call for the crowd to intimidate lawmakers on Capitol Hill. He tells them to cheer on Republican lawmakers but leaves it ambiguous what the crowd should do to Democrat lawmakers. However, he goes on to say, “you have to show strength and you have to be strong.” By Trump’s previous words and by the comments made by his legal counsel Rudy Giuliani who says “we have to have trial by combat” they have whipped the crowd into hysteria. To a crowd so aroused what should they take from the line “you have to show strength and you have to be strong” other than an incitement to violence.
Once the genie has been let out of the bottle, Donald Trump attempts to distance himself from his words by saying to the crowd, “I know that everyone here will soon be marching to the Capitol building to peacefully and patriotically make your voices heard.”
Apologists for Trump including Rudy Giuliani argue that this statement proves Trump was not inciting violence. However, his previous comments to the crowd had whipped the crowd into a frenzy like the owner of a pit-bull waving red meat in front of the face of his dog and then half-heartedly pulling on its lead as it attempts to bite passers-by. This speech should also be seen in the context of Trump’s constant campaign to overturn the results of the election including trying to pressure the Governor of Georgia to find 11,000 votes to overturn the results of the presidential election in his state.
Apologists for Trump have also claimed that he was merely asserting his First Amendment right of free expression; however, does his speech meet the requirements of the First Amendment as ruled by the Supreme Court in Brandenburg v Ohio?
In this case the Supreme Court ruled that free speech is protected under the First Amendment unless the speech is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Even though Trump did not make an overt call to the crowd to commit acts of violence against Congress his manipulation of the crowd throughout his speech implicitly singling out enemies such as Democrats and Mike Pence to be dealt with and his call to the crowd to march on Capitol Hill to intimidate lawmakers created an atmosphere for “producing imminent lawless action” and given the mood of the crowd after Trump had whipped them into a frenzy his words to them were “likely to incite or produce such action,” i.e. violence.
Trump has also broken his oath of office which is stipulated by Article II Section I of the Constitution to “faithfully execute the Office of the President of the United States …..to preserve, protect and defend the Constitution of the United States.” By inciting a mob to attack Congress he has clearly and deliberately not protected and defended the Constitution of the United States.
If the Senate fails to convict Donald Trump it will mean the words of America’s sacred document, its Constitution, will not be worth the paper they are written on. Just as the Constitution has safeguarded American democracy, Congress needs to protect the Constitution to save democracy in the United States. In 1989, as a Congressional staffer, I swore an oath “to protect and defend the Constitution of the United States.” Republican Senators also swore the same oath. I am sure many of those Senators would want to honour the promise they made to the American people. This is their opportunity to redeem that pledge.
History is a harsh but fair judge. It will judge fairly in the clear light of day those statesmen and women who in the republic’s hour of need, grasped the nettle of justice to protect the Constitution. It will also judge harshly those who did not. If Trump’s words and deeds on 6th January are not grounds for impeachment, as the Founding Fathers intended, then nothing would justify impeachment and the American republic is now essentially dead.
Elected office is a heavy burden but it is also an opportunity written in the stars to rise above petty self-interest and secure for oneself a place in the pantheon of noble statesmen and women who put principle before profit and the greater good above all else.
It is only be doing so that we can preserve a liveable union.
There is one more reason why Republican Senators should vote to convict. It is because this conviction is the only way to deter future despots of whatever party from attempting something similar again. It is only if justice is done and seen to be done, that we can preserve the republic for future generations. It is only by voting to convict that Senators from both sides of the aisle will ensure that never again will the floor of the American peoples’ house be stained with blood. That never again will the home of American democracy be the victim of a tyrant’s whim.
Alistair Cooke’s America
America’s Founding Documents:
The Constitution of the United States- A Transcript
“What Trump said before his supporters stormed the Capitol.” The Washington Post. January 6, 2021
“The Trump Show-Downfall”
“It’s time to stop using the fire in a crowded theatre quote.” The Atlantic November 2, 2012