Impeachment is, at its heart, a political matter. There may be a veneer of the legal proceeding to it, but as the last few years have made clear, it’s effectively a matter of how many votes you can rustle up.
If you can convince enough people that the offense was grave enough to merit impeachment and conviction — or perhaps more to the point, if you can convince them it’s in their best interest to say the offense was grave enough — you win.
If Democrats impeaching former President Donald Trump hoped they could convince Republicans it’s in their interest to treat Trump’s speech before the Capitol incursion as incitement, you would think the arrests of several alleged far-right militia members would buttress their case. Ironically, it could be what proves no incitement was involved.
On Wednesday, the Department of Justice announced three individuals affiliated with the Oath Keepers had been indicted for their alleged roles in planning the riot at the Capitol. Jessica Marie Watkins, 38, and Donovan Ray Crowl, 50, are both from Champaign County, Ohio. Thomas Caldwell, 65, is from Clarke County, Virginia.
“According to the charging documents, Watkins, Crowl, and Caldwell communicated with each another in advance of the Jan. 6, 2021, incursion on the U.S. Capitol and coordinated their attack. Watkins, Crowl, and Caldwell are all affiliated with the Oath Keepers, while Watkins and Crowl are also members of the Ohio State Regular Militia,” a news release from the Department of Justice reads.
“Watkins claimed to be a commanding officer within the Ohio State Regular Militia in a social media post.”
Their social media posts on sites like Facebook and Parler on the day of the incursion indicated they were in the area, and indeed participating, in the riot, the DOJ said. Watkins allegedly posted a video of herself inside the Capitol with the caption, “Yeah. We stormed the Capitol today. Teargassed, the whole, 9. Pushed our way into the Rotunda. Made it into the Senate even. The news is lying (even Fox) about the Historical Events we created today.” My guess is that won’t be the line she uses in court.
What’s interesting about the news release, however, is the fact that authorities said the Oath Keepers members were in contact early, coordinating their actions as far back as November. They were also allegedly in close communication as the incursion happened.
Federal prosecutors say they have audio from a channel called “Stop the Steal J6″ on the Zello voice chat app that backs up their case this was an event planned with some level of diligence.
“We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan,” Watkins allegedly said. Another voice told her, “We’ll see you soon, Jess. Airborne.”
According to Sky News, Caldwell received a text message which said, “All members are in the tunnels under capital [sic] seal them in. Turn on gas.”
The actions of far-right groups like the Oath Keepers and the Proud Boys, whose members allegedly featured heavily in the Capitol incursion, have been optically bad for Trump’s case. Paradoxically, indictments like these provide major evidence Trump didn’t incite the crowd.
As Carrie Sheffield pointed out at Just the News, “[Senate Democrats’] incitement case against him was dealt a severe blow this week when federal prosecutors charged three men in the Capitol attack, alleging their communication and coordination dated back to November.”
In an interview with the conservative-leaning publication, Kevin Brock, former assistant director of intelligence for the FBI, suggested the prior planning indicated that no matter what Trump said, the Capitol incursion was going to happen anyway.
During the interview Thursday, Brock said that incitement requires a speaker to desire violence and believe the crowd is capable (or have an indication the crowd is capable) of violence. Brock said neither applied to Trump’s speech.
In the article of impeachment, the quote cited as an example of incitement was “if you don’t fight like hell you’re not going to have a country anymore.” While the speech will almost certainly go down as the low-water mark of the Trump presidency, he made it clear in other parts of the address that protesting should be done peaceably.
“I know that everyone here will soon be marching over to the Capitol Building to peacefully and patriotically make your voices heard,” Trump said.
“Anyone you want, but I think right here, we’re going to walk down to the Capitol, and we’re going to cheer on our brave senators and congressmen and women, and we’re probably not going to be cheering so much 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. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”
“Every other politician in this country uses those kinds of words and that kind of language,” Brock said.
“So I think to convict him on those words would open up politicians across both parties for future examination as to whether or not their words are inciting violence across the country. Frankly, I think a lot of them are exposed in that regard.”
After having listened to the entire speech, Brock said that “I didn’t hear a single word about — or anything that would trigger a reasonable person to believe that he was inciting — violence.”
“He even used the words ‘peaceful’ and ‘respectful.’”
Brock’s theory is that Trump “was caught by surprise at what happened,” which he described as “a failure, frankly, on the intelligence that he should have been provided as president of the United States.”
“We shouldn’t be in a position where knuckleheads like Proud Boys and Oath Keepers can plan a disruptive violent event and it catches us by surprise,” he added.
And this is the eventual problem with impeaching Trump for incitement while, at the same time, pursuing thuggish members of far-right factional groups like the Oath Keepers or Proud Boys for having planned this long in advance. When the trial begins in early February, impeachment managers will have to prove the former president not only knew those far-right groups were planning violence but also incited them with his words.
If Trump had given a brief, placid speech, the riot in the Capitol would have almost certainly happened. If Trump gave the speech he gave, the riot in the Capitol would have almost certainly happened. If Trump recited the Gettysburg Address or Matthew Arnold’s “Dover Beach” or the opening monologue to “The Jerk,” the riot in the Capitol would have almost certainly happened.
Yes, Trump gave a fantastically bad speech, badly timed and full of anger directed at all the wrong people. Yet the only hard evidence we have seems to indicate it played no role in directing violent right-wing factions who came to Washington, D.C., with plans to enter the Capitol by force. If Trump directed none of this, there’s no incitement.
The Democrats can try their hardest to make it look that way, though. After all, politics plays an outsized role in the impeachment process.
To the extent law enters into it, however, there’s nothing to tie Donald Trump to incitement.