The House of Representatives is right now debating the second impeachment of Donald Trump, this time for inciting a mob of armed insurrectionists who, a week ago today, violently stormed the United States Capitol and besieged the legislative branch of our nation’s government in a premeditated putsch attempt, aiming to seditiously — and, some of them hoped, murderously — disrupt the constitutional vote-counting process that affirms the (until now) peaceful transfer of power.
In these final hours before a U.S. President is impeached for Incitement of Insurrection, it’s worth reflecting on precisely what “incitement” means, in this context — and why, in my view, we shouldn’t get too bogged down in semantic parsing of his speech to the mob last Wednesday. That speech matters, but it’s hardly the only thing that matters. I don’t even think it’s the most important thing.
The most important thing is the Big Lie.
Before continuing in that vein, let me clarify what “incitement” doesn’t mean in the present context.
Whether it’s used in a New York Times headline or an article of impeachment (which, per the Founders’ intent, need not be based on a criminal offense), “incitement” does not necessarily mean criminal incitement, which is an exceedingly narrow crime under Supreme Court free-speech precedents. As I tweeted the other day in a seven-tweet thread (1, 2, 3, 4, 5, 6, 7):
I’m a lawyer, and have always said “words have meanings.” But people need to stop obsessing over — and hiding behind — the always-more-stringent-than-common-usage *criminal law* definitions of words, in rebuttal to proper usage of those words’ broader meanings outside of the courtroom.
When I say Trump incited a riot, I don’t mean he is necessarily guilty of the *crime* of incitement. . . . Criminal-law definitions are uniquely narrow because people must not be deprived of physical liberty unless they have, beyond a reasonable doubt, committed an undeniable offense defined in advance with crystal clarity. That does not apply to everyday (including political) word usage.
We don’t want jurors making ad-hoc judgment calls about “ehhh, does this sort of conduct feel like it ought to be criminal?” But outside the courtroom, when physical liberty isn’t at stake, we do want citizens to make judgment calls about politicians’ misdeeds. And the same goes for legislators making judgments about impeachment.
I emphasize again: Words mean things. I’m NOT advocating bad-faith definitional expansion, for partisan convenience, of words that connote very serious misconduct. But applying criminal-court standards to non-criminal political accountability is (often) a bad-faith contraction of definitions. That’s wrong too. Let’s stop doing it.
So, let me be clear: what I’m saying here is not a commentary on the crime of incitement. In deeming Trump, and many other Republicans, guilty of inciting post-election violence, I mean only that they are morally guilty of the misdeed (not crime) of incitement. The same applies when I use words like “treason” or “sedition.” I’m talking about moral, ethical and patriotic precepts, not crimes. (Whether there’s criminal liability is a separate issue, one that I am not addressing one way or the other.)
With that caveat out of the way, allow me to quote a series of ten tweets about elections, incitement, violence, and moral responsibility (1, 2, 3, 4, 5, 6, 7, 8, 9, 10), which I posted on Sunday, January 3 — the weekend before the attempted Capitol Hill putsch.
I’ve long felt that we’re too quick to blame politicians we dislike for the actions of violent crazies. Sarah Palin didn’t shoot Gabby Giffords; the #Resistance didn’t attack that GOP baseball game.
But this is different. The coup supporters are responsible for what comes after.
If people believe your abject lie that a valid, untainted election result is a “steal” that must be “stopped,” violence at some point becomes a rational response from their perspective. We often call such political extremists “the crazies,” but it stops being “crazy” when it’s the logical conclusion of your cynical claims, if believed.
This is especially true if you don’t offer them another means of “stopping” the “steal.” Which, after January 6, you can’t, because of course there is no “steal” to “stop.” The election is over; Biden won; he’ll be POTUS in 17 days. After January 6, only violent revolution could “stop” that.
This is something I’m acutely aware of—because I worry about it with my own “coup” talk. Of course, there are huge differences: (1) I’m not lying. (2) I’m just some guy, not a person in power. (3) There ARE nonviolent means to prevent this type of coup. Still, I worry about it. One thing I hate about the Trump era is how it has made extreme rhetoric necessary to accurately describe what’s happening. I feel deeply uncomfortable using the language of “coup,” “fascism,” “destroying the Republic,” and so forth. I hate talking this way. I do it out of necessity.
If, God forbid, we someday run out of nonviolent means to oppose a fascist coup, such rhetoric will be very weighty because of what it implies. Thank God we’re not there yet.
But these Cruz/Hawley assholes are inventing a TOTALLY FAKE version of that scenario, for shits and giggles.
So yes. If, God forbid, there is violence on or after Jan. 6 by people who believe the lie that a “steal” is underway, which (logically) can only be “stopped” by violence, I will hold Hawley, Cruz & co. personally responsible for those people’s actions, and whatever harm they cause.
Because fundamentally, when you lie to people in a democratic republic that their right to effect change by voting has been “stolen,” and no further nonviolent legal recourse exists, the logical conclusion of your lie, if believed, is violent revolution. You own that consequence.
What sets this lie apart from other irresponsible-but-not-quite-incitement falsehoods is its (false) premise that the usual means of righting wrongs in a democratic republic — voting — has been rendered ineffective by a successful “steal.” That particular lie makes you culpable for the resulting violence. Because if people believe your lie that ballots are being flatly ignored, they will resort to bullets. They will do so not because they’re “crazy” but because the logic of your lie compels that conclusion. This is why such claims should never be made lightly, let alone falsely.
Hat tip to Timothy Synder, whose ballots/bullets tweet inspired that last point (and indeed, the whole thread).
After my fears were realized and the Captiol was stormed, I retweeted part of my pre-putsch thread, and reiterated its point in a pair of new tweets (1, 2):
This isn’t a typical incitement situation. The central issue, morally, isn’t whether Trump and other Republicans said “go break windows” or “storm the Capitol” or “be violent” or “kill ’em.” They didn’t need to. Their utterly baseless stolen-election lie INHERENTLY ENCOURAGES VIOLENCE.
Telling people, falsely, that elections are rigged and their votes systematically stolen, *is* incitement to violence. Because **if that was true** (which it’s not), and if legal recourse to fix it was exhausted, violent revolution would be justified, by the Founders’ own logic!!
The next day, I reiterated the point again:
I added: “The baseless lie that the election was irretrievably stolen — by a (wholly fabricated) conspiracy spanning the whole government and legal system — inherently incites violence because if that were true, revolt would be rational.”
I also praised Gabriel Malor for making this point in his own ten-tweet thread (1, 2, 3, 4, 5, 6, 7, 8, 9, 10). Malor wrote:
Many GOP officeholders are grappling—poorly—with the problem that they told their constituents that the election was getting stolen and patriots could stop it. Now they’re backtracking: “we didn’t mean actual action, patriot fam!”
This is the problem with the Flight 93 rhetoric. If it were true what GOP officeholders and their enablers in right-wing media were saying, then a desperate act of patriotic defiance wasn’t just necessary; it was *mandatory*. The problem is it wasn’t true.
But now all their stirred up “patriots” are standing around confused, asking “but you told me the fate of the country was at stake!” And today we’re seeing GOP officeholders trapped between their own words and the consequences they asked for.
Yes. Indeed.
The Big Lie is the incitement. Yes, there’s also the explicit talk of “fighting” and showing “strength” and “trial by combat” and the rest. And yeah, that makes it even worse. But the primary incitement to violence is the Big Lie itself: the utterly false, fabricated fiction that the election was stolen. That particular lie is uniquely dangerous, and necessarily invites violence.
That is why I utterly reject calls for “unity” from any officeholder who participated or acquiesced in the Big Lie, and has yet to renounce it. Quoting again from Gabriel Malor:
[The responsibility is] not just on Trump. It’s on the 126 House Republicans who signed on to a brief arguing that Vice Presidents have inherent power to overturn election results they don’t like. It’s on the Levins and Limbaughs who spent two months telling listeners the election was stolen.
The message to these wannabe patriots at this point should be unequivocal:
(1) The claims that the election was stolen are false, and utterly without support.
(2) All of the legal authorities to look into this have said so.
(3) I misled you about that, and I am sorry.But today the message I’m seeing from GOP officials is:
(1) You were misled, but not by me. It was totally someone else.
(2) We have to do something about fraud in elections so people have faith in the process.The first one here is typical weaselly politician bullshit. But the second one just perpetuates the dangerous delusion that led to Wednesday’s attack. Shameful.
Quite so.
(Malor added: “The fact is that we have extensive protections in every state to deal with voter fraud. And while it is true that there’s always a fraudulent vote or two, the states typically catch most of it, and there isn’t enough to change election outcomes.” Yup.)
This reality — i.e., the dangerousness of these Republicans’ cynical lies about the election — is why, despite being the sort of squishy moderate Dem who usually embraces calls for “unity,” I utterly reject the GOP’s both-sides bullshit about “turning down the temperature.” What Republicans did is far worse than mere “incendiary” language:
Nor can I take seriously congressional coup plotters’ empty condemnations of the “horrific” insurrection, when insurrection is the logical conclusion of their own lies, from the perspective of people who believed those lies.
Trump should be impeached and convicted, and the bastards who joined his Big Lie should be driven from public life in disgrace and ignominy. Any hope of earning redemption would have to begin with acknowledging their grave error, and trying to make amends by publicly correcting and atoning for it:
P.S. About the whole “Big Lie” thing… President-elect Biden is right to cite Goebbels. Trump routinely employs the tactic that Goebbels made famous, as I’ve been pointing out for literally four years. We mustn’t shy away from saying so. It isn’t offensive to tell the truth about this; it’s necessary. And the fact is, with their deadly post-election lies, Trump and his party of sycophants went Full Goebbels. You never go Full Goebbels. But they did:
So yes, let’s have “unity” — by uniting in favor of something that all intellectually honest people, acting in good faith, must surely agree is necessary: accountability, both for the Inciter-in-Chief and for his Big Lie accomplices.