The case against Donald John Trump in this, his second impeachment trial, is a curious thing. The single charge is that he allegedly incited a riot at the Capitol by contesting the results of the 2020 election. But his actions do not meet the legal definition of incitement. As we are constantly reminded, a Senate impeachment trial is not a criminal trial, so the senators can choose to define incitement however they want, but so far they haven’t.
The opening statement from the House managers was almost solely focused on feelings and emotion. At one point, Rep. Jamie Raskin, D-Md., literally broke down in tears while describing the riot. But what he did not offer was a standard by which Trump’s guilt or innocence on the charge of incitement could be based. This is very important because a precedent is being set here.
Likewise, on day two, the Democrats once again made a mainly emotional appeal, focused on video and images from the riots. The closest that Democrats came to showing Trump had encouraged the events at the Capitol was a kind of “incitement by omission.” They tried to show that he intentionally refused to tell rioters to stop once they had started.
Even if that is true, and it’s not entirely clear when Trump was tweeting about the rioters themselves and when he was tweeting about the vast majority of his supporters who stayed peaceful, it’s not incitement. You can’t incite something that already happened. Conservatives in favor of conviction have invented arguments that blend morality, patriotism, and emotion. But they are very short on facts and specifics, which mean any conviction of Trump would be a mile wide and an inch deep.
