Flashback: By Dems' Standards, Should Kamala Be Impeached for What She Said About Trump Dying?
To the extent that the second impeachment trial of Donald Trump will be a legal proceeding as opposed to simply political theater, the case to convict him hinges upon whether his comments during his Jan. 6 speech were protected by the First Amendment.
Trump’s lawyers argue that they were. According to The Wall Street Journal, in a pretrial brief filed Monday, they noted that then-President Trump only used the word “fight” a “little more than a handful of times and each time in the figurative sense.” The House’s article of impeachment specifically lists a quote using the word fight — “if you don’t fight like hell you’re not going to have a country anymore” — as evidence that Trump incited the violence that ended with five dead and over 200 charged after the riot at the Capitol.
To the Democratic impeachment managers, this misses the point of their case.
“The House did not impeach President Trump because he expressed an unpopular political opinion. It impeached him because he willfully incited violent insurrection against the government,” the House impeachment managers wrote in a brief, adding that Trump’s remarks were “a frontal assault” on the First Amendment, according to The Journal.
The problem with this has been pointed out not infrequently by Republicans: When we define down what incitement entails, there are a whole lot more people who could be credibly accused of it. Republicans have made cases against Sens. Bernie Sanders of Vermont and Chuck Schumer of New York.
If you want to follow this absurd redefinition of incitement to its conclusion, you could also make a case Vice President Kamala Harris is guilty of it, too.
In April of 2018, then-Sen. Harris appeared on “The Ellen Degeneres Show,” a setting that’s usually a cuddly fount of warmth and positivity. (Unless you work for Ellen DeGeneres, of course.)
At the time, the most of the coverage focused on the fact Harris would neither confirm nor deny she was running for president, something that seemed to irk political reporters.
“There is absolutely no reason that politicians need to be shamed or punished for expressing ambition,” CNN’s Chris Cillizza wrote, bemoaning the unfair standard by which senators and governors are punished for expressing a desire for higher office.
Unmentioned in Cillizza’s 19-paragraph story — or, indeed, in most corners of the media — was the fact Harris joked about killing either the president, vice president or attorney general.
Watch what happened when Ellen relayed a question about whether Harris would want to be stuck in an elevator with Donald Trump, Mike Pence or Jeff Sessions:
“Does one of us have to come out alive?” And then the laughter. Hee-larious. See, it’s funny because she might kill one of them! Hypothetically, of course.
While Harris getting stuck in an elevator with one of these people would be an unlikely situation (but would make for a great one-act play), Harris’ answer fit into a wider problem during the Trump years: Given who was president, invoking the specter of violence against him or those around him was kind of sort of OK.
The most acute expressions of this were confined to the entertainment industry — think Kathy Griffin holding up the bloodied, effigial head of Donald Trump or Johnny Depp wondering aloud about “the last time an actor assassinated a president” and saying that “it has been a while and maybe it is time.”
However, there were plenty of Washington figures who engaged in diluted versions of this kind of thing, too, the most famous being California Democratic Rep. Maxine Waters’ exhortation to her supporters in June 2018 that if “you see anybody from [Trump’s] cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd, and you push back on them, and you tell them they’re not welcome anymore, anywhere.”
Now, was this incitement? Was Harris’ comment incitement? Under any rational standard, no. Under the standard set by the Trump impeachment, yes.
Now-Senate Majority Leader Chuck Schumer spoke to a pro-abortion rally outside the Supreme Court last year and told the crowd, “Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay the price!” That could very easily be taken as a physical threat of political violence under the Democrats’ expansive interpretation.
Waters’ remarks came amid a series of confrontations between liberal crowds and Republican politicians. They received some pushback at the time, but her party didn’t take her to task and media coverage was ambiguous at best.
Schumer’s comments disappeared from conversation almost as soon as they were made.
Harris’ joke barely appeared in the first place, with the exception of receiving some coverage in conservative media.
None of these remarks represented incitement, nor were they delivered prior to an event as tragic or as scarring as the Capitol riot. However, they’re illustrative of the danger that comes if we define down what incitement means. President Trump used the word “fight” metaphorically a few times in the speech and made it clear the planned march to the Capitol should be peaceful.
While it was doubtlessly an ugly chapter in the Trump presidency, the speech doesn’t legally rise to the level of incitement. For Democrats, it might be expedient to pretend it does, at least for the next few weeks.
However, to use the words of Chuck Schumer, they will have “released the whirlwind” of bad precedent. The likelihood they’ll end up paying the price isn’t a small one.
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