Has the House charged the wrong crime in Impeachment II?

By Robert Johnson | Guest contribution | 

After the January 6, insurrection and attempted coup d'etat at the US Capitol, the House has acted swiftly in drafting impeachment documents against President Trump. The document charges the president with "incitement of insurrection." 18 U.S. Code § 2383.

While this term description sounds reasonable to the average American for those events, it creates potentially muddy legal issues for any tribunal seated to rule on the evidence. First and foremost is a 1st Amendment defense of the right of free speech. 

Attorneys for Trump will certainly argue Democrats are trying to punish constitutionally protected speech related to Trump’s diatribe telling them he won the election, encouraging them to march on the capitol and that they “might lose their country if they didn’t fight like hell.” Then there are the issues of specifically how to define “incitement” and prove “insurrection” agreeable to a bi-partisan congress.

The charging document reads in part: "President Trump gravely endangered the security of the United States and its institutions of Government. …He threatened the integrity of the democratic system interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States."

The resolution also cited the Constitution's 14th Amendment, noting that it "prohibits any person who has 'engaged in insurrection or rebellion against' the United States" from holding office. It also included Trump’s phone call to Georgia’s Republican Secretary of State requesting he “find 11,780 more votes,” just enough to overturn Biden’s  win in Georgia.

It shouldn’t go unnoticed that an impeachment trial would grind the chamber to a halt, making it nearly impossible to confirm nominees or enact legislation in the opening days of Biden's presidency.

Notwithstanding the previous statement, a filing of “Seditious Conspiracy” would be much easier to prove; would be much more expeditious as well as carry a sentence two times lengthier than would a conviction of Incitement to Insurrection.

Seditious Conspiracy (18 U.S. Code § 2384) in non-legalese states if two or more persons agree to overthrow or put down the  US government or oppose by force their authority or hinder the execution of any law they are guilty of seditious conspiracy.

This is exactly what took place when the president told the mob to go to the capital and show force “fight much harder…to show strength,” at a time Congress was following constitutional protocol certifying the electoral votes. Trump could be found a party to this conspiracy as long as he and the actors shared the general objective of the conspiracy to use force or the threat of force to prevent Congress and the vice president from counting and announcing certified electoral votes as prescribed by the constitution.

A charge of seditious conspiracy eliminates any First Amendment arguments that he was merely making a speech to a public gathering or expressing his opinion that the election results were tainted by fraud.

There would seem to be sufficient evidence to present to the Senate that Trump had personally promoted the gathering via social media with statements directing his followers to “Be there, will be wild!”—then bipartisan support for conviction should be possible.

Additional articles of impeachment for violations of federal law could easily also be included and proven; Trump’s use of “official authority for the purpose of interfering with, or affecting, the election for the office of President.” Trump’s statements last week requesting Vice President Mike Pence overrule the votes cast by the Electoral College and his documented conversations with Georgia election officials are examples of such abuse of authority.

These facts alone should allow bipartisan support for an impeachment conviction based on seditious conspiracy and interfering with election laws. Perhaps the House should reconsider the language of their resolution before advancing it to the senate.

Robert Johnson is the pseudonym of a verified retired California Officer of the Court

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