Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial

Below is my column in the Hill on how the second Trump impeachment could become a trial over reckless rhetoric in America. The House managers may be playing into that very danger by selecting some managers who have been criticized in the past for their own over-heated political rhetoric.  As managers were replaying the comments of former President Donald Trump from prior years to show how his words fueled divisions, critics were pointing to similar statements from the managers themselves. Rep. Jamie Raskin, D-Md., the leading impeachment manager, was chided for using “fight like hell” in a 2019 interview with The Atlantic — the very words replayed repeatedly from Trump. He also used that phrase repeatedly in prior years to ramp up his supporters in fighting for Democratic control of Congress. Speaker Nancy Pelosi blundered by appointing managers like Eric Swalwell who is notorious for his inflammatory rhetoric, in a trial where such rhetoric would be the focus of the managers.  Swalwell’s comments not only include disturbing legal claims, but highly personal and offensive remarks like mocking threats against Susan Collins, R-Maine. Swalwell declared “Boo hoo hoo. You’re a senator who police will protect. A sexual assault victim can’t sleep at home tonight because of threats. Where are you sleeping? She’s on her own while you and your @SenateGOP colleagues try to rush her through a hearing.”  Pelosi picked not only a member who has viciously attacked Republicans but one of the Republicans most needed by the House in this trial. If this trial boils down to irresponsible political rhetoric, the public could find it difficult to distinguish between the accused, the “prosecutors” and the “jury.” That is the problem with a strategy that seems focused not on proving incitement of an insurrection but some ill-defined form of political negligence.

Here is the column:

Little more than one year since Donald Trump’s first impeachment, the Senate is poised to pass judgment on him again. There is, however, one notable difference in the trial that starts today: In 2020, Trump’s conduct with Ukraine turned on his words alone; this time, a vote to convict could be seen as implicating a host of others in the use of similarly reckless rhetoric — including some of his Senate “jurors.”

The search for moral clarity will be lost if Americans cannot distinguish between the behavior of the accused and that of his jury. With polls showing only half of the country favoring conviction, this trial could end up as an indictment of both sides for fueling our divisions. Impeachments were intended to be used in the clearest possible cases to secure two-thirds votes for conviction. But Congress could wind up looking like an unimpeached co-conspirator — not in the riot, but in our ongoing political discord.

The Senate will focus on words from Trump’s Jan. 6 speech that could be viewed as criminal incitement or as political exhortation. The House will ask the Senate to convict on how Trump’s words were interpreted, even if those did not actually call for violence. House impeachment managers plan to replay video of Trump urging his supporters to “fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.” He also told them: “We will not be intimidated into accepting the hoaxes and the lies that we’ve been forced to believe over the past several weeks.” The problem? Those words could be equally consistent with calling for a protest, not violence, as many groups routinely do at state and federal capitals.

While the House frames these words in the most menacing light, it barely mentions other words that reinforced a nonviolent meaning. For example, Trump told his supporters that “everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” He said the reason for the march was that “we are going to cheer on our brave senators and congressmen and women.” As for those opposing any electoral vote challenge, Trump said “we’re probably not going to be cheering so much for some of them. Because you’ll never take back our country with weakness.”

Cheering on your congressional allies is an act of free speech, not insurrection. Yet, the House impeached Trump for inciting an actual insurrection or rebellion. Its impeachment article does not charge him with recklessly causing a riot or threatening Congress; it alleges an effort to overthrow our government. That is the deepest possible hole to dig in the House and to fill in the Senate.

The Supreme Court has long rejected fluid standards in criminalizing speech. Indeed, a case based on this speech likely would fail in federal court. In Brandenburg v. Ohio, the Supreme Court refused to allow the criminalization of speech that actually calls for “the use of force or of law violation” unless it is imminent.

The Trump team is likely to play back similar language used by Democrats in both houses to “fight” for the country and to “retake” Congress. During Trump’s 2017 inauguration, Democrats denounced his legitimacy as riots broke out in Washington involving violent groups. Rep. Maxine Waters (D-Calif.) later called on people to confront Republicans in public; Rep. Ayanna Pressley (D-Mass.) insisted during 2020’s violent protests that “there needs to be unrest in the streets.” Then-Sen. Kamala Harris (D-Calif.) said “protesters should not let up” even as many protests turned violent or deadly. House Speaker Nancy Pelosi (D-Calif.) has condemned fellow members as effectively traitors and the “enemy within.” She was criticized last year for stating, in the midst of violent protests, that “I just don’t know why there aren’t uprisings all over the country. Maybe there will be.”

All of these Democrats insist they meant peaceful acts — and I believe them. But that is the point: Rioters sought to burn federal buildings or occupy state capitals and, in some cases, seized police stations, sections of cities, even a city hall. Democrats’ words did not cause that violence on the left. Yet, this impeachment trial invites the same or similar words to be interpreted subjectively, based on whether you believe or approve of the speaker.

Reckless rhetoric reflects our age of rage. Senate Majority Leader Chuck Schumer (D-N.Y.)  stood in front of the Supreme Court and, citing two justices by name, declared menacingly: “Hey, Gorsuch. Hey, Kavanaugh — you’ve unleashed a whirlwind. And you’re going to pay the price.” Rep. Cori Bush (D-Mo.) seemed to defend the recent violent takeover of a St. Louis prison by tweeting the words of Martin Luther King that “a riot is the language of the unheard.” Nor is this limited to Washington: Michigan Gov. Gretchen Whitmer (D) defended state Rep. Cynthia Johnson (D) who called for “soldiers” to “make [Trump supporters] pay” for criticizing and harassing her.

Fired FBI director James Comey has been given to reckless rhetoric, too. He recently said: “The Republican Party needs to be burned down … It’s just not a healthy political organization.” Likewise, Washington Post columnist Jennifer Rubin declared that “We have to collectively, in essence, burn down the Republican Party. We have to level them because if there are survivors, if there are people who weather this storm, they will do it again.” Since the Republican National Committee was targeted with a pipe bomb on Jan. 6, would that constitute incitement to arson or violence? Not under Brandenburg.

Such rhetoric even extends to academics, who historically abhor violence. One professor recently called for more Trump supporters to be killed. Rhode Island Professor Erik Loomis, who writes for the site Lawyers, Guns, and Money, said he saw “nothing wrong” with the killing of a conservative protester — a view defended by other academics.

While they are not the president, the fact is that politicians, pundits and professors regularly engage in more direct, violent speech than what Trump said on Jan. 6. While certainly not responsible for the disgraceful riot in the Capitol, many of them remain accessories to stoking our politics of hate and division. Many of their statements have been defended as appropriate calls to action to combat great social injustice. The question is whether we want shifting majorities to decide whether a statement is inciteful or insightful — a dangerously fluid standard.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He was called by House Republicans as a witness with the impeachment hearings of Bill Clinton and Donald Trump, and has also consulted Senate Republicans on the legal precedents of impeachment in advance of the current trial. You can find him on Twitter @JonathanTurley.

163 thoughts on “Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial”

  1. Let’s face it, folks. There are two Americas. Neither one can live with the other. Time for a divorce.

  2. Erik Loomis is certainly on your s^&t list isn’t he, Turley? Couple times a week you find a way to blaze on him in your writings. I think he’s even surpassed Lawrence Tribe, Sally Yates or Jennifer Rubin of late — although Jennifer seems to make the cut today as well.

    *Elvis

    “With polls showing only half of the country favoring conviction, this trial could end up as an indictment of both sides for fueling our divisions.”

    So much misleading schlock in that quote, Jon. First off, the polling…, 56% favor conviction and banning trump from future prospects of holding office. What I’m seeing is a 12 point lead for that prospect, something that’s hard to get that many Americans agreeing to. About anything.

    *Bug

    The problem with your column is, of course, complete lack of context. Many people have said excited things about any number of things without getting into a focus campaign around them. What they didn’t do was send out ‘save the date’ notices, speak at a rally immediately preceding a riot and then say he was going to walk with a crowd to a location where said riot occurred (before bailing like the coward he is and always has been).

    This column is so tone deaf it reminds me of that bad child toy character Dan Ackroyd used to play on SNL. I’ll see if I can find a clip — it’s that damn hilarious. Who would’ve ever known it would become a rhetorical tool for surrogate lawyers at some point in the future??? Awesome. Good on you for bringing it into the greater zeitgeist, Turley!

    1. Anonymous, Turley is in the midst of denial about what really transpired. It wasn’t just Trump that created this whole mess. He alone couldn’t do it without his army of enablers. The one reason why so many GOP congressmen are going to acquit him is because they are also part of it. They have been complicit in the entire charade and they know it. These are not leaders. Trump was no leader. Trump is just a “boss” who lets others do the dirty work while he takes the credit.

      Trump literally left his supporters hanging in the wind after telling them to go to the Capitol, that he will walk with them. He kept saying “we”, he was leading them on.

      The most grotesque irony is these GOP congressmen believe they can use Trump’s own base for justification to vote to acquit. The very base trump just threw under the bus like trash.

      That base is gone now. These GOP congressmen will have a severely diminished base of Trump supporters to rely on in the future. Over the course of Biden’s term these people will no longer be as relevant as they think they are.

      These GOP trump loyalists don’t have any real options on who they can rely on as a base. They burned all their bridges to any other demographics. They are locked into the crazy fringe lunatics who can’t discern fantasy from reality. Over time that will become apparent to them.

      1. Word! I’m curious when Lindsey Graham, or Hawley are going to catch on that they are never going to be able to do rallies and have people froth at the mouth and scream ‘build the wall!!!’…, that trump’s base will never translate directly to them?

        And I wonder when Turley will learn his surrogacy won’t be able to escape trump’s ire any more than with others who’ve walked that path? Granted, he’s contractually obligated to it at Fox, probably even for his subscription list here. It’s going to leave a mark for sure.

        EB

      2. Have any of these GOP Senators ever stopped to think that 5 people would be alive now if they had done their duty during the first impeachment? Dear Susie Collins: Trump DIDN’T learn his lesson. Dear Lisa Murkowski: all of the evidence put on by the impeachment managers will NOTprevent Trump from trying to run again, because for the sake of that massive ego of his, he has proven that he will accept aid from hostile foreign governments, lie about it, and threaten Secretaries of State if they don’t falsify vote totals. So, if you think this trial will end Trump’s political career, you are sadly mistaken. It’s up to you and your GOP colleagues.

        If GOP Senators don’t vote to keep him from ever assuming office again, this will only embolden him and send the message that chronic lying, inciting a riot, behaving like a petulant child by refusing to concede, despite 60 + failed court challenges, by committing felonies by trying to get a Secretary of State to “find” nonexistent votes, by trying to get the VP to over ride certified vote totals, all of this is acceptable presidential behavior. Did it occur to any of them that while he spent hours wallowing in what he thought was the glory of the love and adoration of his disciples who were fighting for him, he endangered their lives, too, and by doing nothing about it for hours while his disciples bludgeoned Capitol Police officers, urinated and defecated in the offices of their Democratic colleagues and defaced John Lewis’s memorial, he threw them under the bus, too? Are the power, judges and tax cuts for wealthy donors really worth supporting this spectacular failure of a man who didn’t care about their safety either? It is up to the GOP to prove what it means to be a patriotic American. I don’t have a lot of hope when you see Cruz tweeting about breast feeding in England or Hawley reading a magazine with his feet propped up and ignoring the evidence during the trial.

        1. Totally. I’ve often wondered what goes through republican senators minds (especially the ones who said the first impeachment proved its case but ‘let’s wait for an election!’) as they watch the slow motion train wreck before, and certainly, since.

          Collins frowning and saying trump would ‘learn his lesson’ was the height of absurdity from the minute she said it. Completely not in line with anything in trump’s past. Adam Schiff called it. It happened. If there is not enough to ban trump from running for future office from 1/6 just take the impeachment statute off the books.

          EB

  3. “Speaker Nancy Pelosi blundered by appointing managers like Eric Swalwell”

    Why do you think she ‘blundered’? She knows who he is and what he has said and done. This was a deliberate choice. For what purpose?

  4. Context always matters. Are you talking about betraying your constitutional Oath of Office and using constitutionally-subversive (illegal) tactics? Or are you talking about “fighting” using legal constitutional means that are loyal to their Oath of Office?

    Example: fighting legally and constitutionally for the same rights of other Americans is precisely what the constitutional rule of law system was designed to do. Fighting illegally to stop the constitutional process is a betrayal of the Oath of Office.

    1. Ashcroft, it does seem Turley is completely ignoring context here. He’s only focusing on words themselves as if using them without any contextual point of view is considered “reckless rhetoric”.

      Given Turley’s not picking nature on anything it is not surprising that he’s forgoing the context of the rhetoric he’s comparing. It’s deliberately being disingenuous. He’s a lawyer, and a law professor who should know the difference in context.

      1. Svelaz, Turley is a paid advocate. That explains his defense of the indefensible. Let him deny that he is being paid to defend the Republican Party. Or if not paid by the party, he is certainly being paid by Trump TV as a contributor. I DVR some Trump TV shows and scroll through them hoping to catch Turley’s appearances to see how he panders. Since the House Impeachment though, I have not caught any of his appearances. Perhaps, I have missed them. Be that as it may, he is doing his dirty work by writing these preposterous columns. If he keeps it up, Turley runs the risk of being remembered by history as the Roy Cohn of Trumpism.

  5. What does “No justice, no peace” mean? Has anyone who uttered that phrase been charged with inciting violence? If vandalism and violence ensue after a screening of “Do the Right Thing,” should Spike Lee be charged with inciting it? Where were the Dems when mostly peaceful protesters destroyed property and occupied a federal courthouse last summer? I don’t recall any Congressional hearings where small business owners whose stores were destroyed were invited to testify? Nor any commiserating from AOC and her squad after Rand Paul and his wife were threatened by a mob outside the White House. It is only after the Dems themselves felt the fear of a mob that they woke up and focused their wrath on Trump. In short, to me it is the double standard and selective outrage that stands out in this theatrical production.

    1. Barnum, it’s not a double standard. It’s cherry-picking their responses out of context.

      Democrats condemned the violence while still supporting the peaceful demonstrations. Some did justify the violence as an expected outcome of the level of rage from some protesters due to the sheer injustice of what they have endured for decades. The murder of George Floyd was not just an isolated incident, it was just one of a series of injustices over years that have gone largely ignored or accepted as normal by those committing the injustices.

      Trump supported, encouraged, and enabled the very groups of people who kept committing such injustices. There’s a huge difference.

      1. “Trump supported, encouraged, and enabled the very groups of people who kept committing such injustices.”

        Lyndon Johnson not only created, supported, encouraged, and enabled, the welfare state he put into place in the 1960’s that resulted in the destruction of the nuclear black family and the ever increasing rise in black on black violence in the US ever since, he also ensured that a huge percentage of black Americans would remain in the lowest socio-economic strata’s in the US to this day.

        George Floyd was a sociopathic career criminal with a history of arrests and incarceration that went back years. Floyd is a classic example of the type of black person in America who has no other interest outside of his own self-interest.

        That same self-interest was displayed by the founders of BLM when they used Floyd’s death as an excuse to sow division and hatred in order to enact a Marxist agenda that by their own mission statement would further serve to destroy black American families.

        Which is exactly what you are doing. Likewise, the young maladjusted white boys in Antifa did nothing other than use American black people to further their own self-serving agenda. An agenda that has absolutely nothing to do with race.

        MLK said: “Every man must decide whether he will walk in the light of creative altruism or in the darkness of destructive selfishness”.

        Every single act committed by the BLM/Antifa contingent has been done in the darkness of destructive selfishness. Which is why I never heard any of them cite Martin Luther King during their “demonstrations”. It was all about selfishly fomenting hate and actively causing destruction.

  6. “All of these Democrats insist they meant peaceful acts — and I believe them.”

    Either you are lying, or you’re incredibly gullible.

  7. This coming from a man actually finding within himself sufficient moral turpitude to suggest that because Trump said “one” time, with a sarcastic smile and a wink wink nod nod..”do it peacefully…” , That that one single use of the word said in obvious sarcasm somehow negates the TWENTY times he said with anger and clear conviction, to “FIGHT”. Only the sleaziest and most morally bankrupt of the bottom feeders would ever with a straight that the one time he said coyly with a clearly implied”wink wink, nod nod” would somehow negates the TWENTY times he instructed them to “FIGHT”. The words are opposites. Antomyn’s. While a sleazy two bit mob lawyer might argue that when he said fight he didn’t mean what everyone watching and listening including his followers knew he meant, and instead try to pretend for Me Trump that he meant something other than you …well …”fight”. But even such a slimy attempt at such a infantile argument omits the fact that the words he used regardless of the context or specific intent, are antonymous with each other which leaves no room for wriggle. Regardless of his interpretation of the word fight, it is the direct opposite of the word peace. Therefore you cannot argue coherently that he meant to do both. Whether a fight is physical, verbal or otherwise one thing it most certainly cannot be, is peaceful. The word is antonymous with the word fight. You cannot have a peaceful fight. It’s binary. Either on or off. You can either be peaceful, or you can fight. You can never do both simultaneously.

    So we’re left with having to determine which of the two words Mr Trump meant, and which one he used sarcastically. Mr Turley wants us to believe that the one word he said, the one time he muttered the word “peaceful”, saying it with a chuckle, …that that was the word he was serious about and that that negates the TWENTY times, he instructed them to not just fight but “fight like hell”. The twenty times he didn’t mean it. The one time said with a smirk, …he did. That’s your argument Mister Turley, and with it you join your fellow invertebrates in the annals of history as one who sold his soul cheap at a time when the very foundations of our own humanity as a people and a nation have been brought to the brink by a bunch of white supremacists and the spineless worms who placate to them. Your argument will be descimated by those who come after and your reputation as a fair and impartial juror will give way to your new found allegiances placing you eternally and forever publicly alongside the likes of Lindsey Graham, and Rudy Guliani. The worst part about it? You know better. You know you do, and that will be a sentence that haunts you worse than any justifiable public demonization highlighting your lack of moral integrity for the reminder of your years. You made the argument. Now you’re going to have to live with it.

    1. +100

      Turley’s eternal shame, as long as he’s remembered (not very long).

      If he can find the pictures of rioters anywhere with Swalwell hats or Biden flags, let alone in the Capital after their months long efforts to flip an election, he’d have the moral equivalency he pretends here. That’s good enough for Fox News and the GOP Senators cowering in their seats, wondering when Trump will give them their balls back, and good enough for most of the posters here who bout this obvious self dealing con-man’s BS and asked for more. It’s not good enough for history or America.

    2. Anonymous, you said it better than I could have. Bravo. I have tried to give Turley the benefits of my doubts, but after this column, I now realize that he is not acting in good faith. I have said it before that Turley will NOT acknowledge the Big Lie which Trump and his enablers used to poison the minds of his followers. Turley disingenuously ignores the hair-trigger mind-set of the January 6th mob, the context of which was painstakingly laid out by the House Democrats. And Turley’s resorting to “whataboutism” is truly pathetic- it is unworthy of an academic. He has finally lost all credibility with me. It is truly sad to witness his attempt to ingratiate himself to his employer Fox News. Despite his holding himself out as an impartial legal commentator, it is all too clear that he is a paid advocate for the Republican Party which he has admitted counseling behind closed doors (as opposed to a public forum as an impartial legal expert).

      I predict that you will see Turley become a fixture on Fox News, and he will no doubt use that platform to plug his book which he is currently writing. His legitimating the likes of Hannity, Carlson, Ingraham and Levin by his appearing on their programs is no less despicable were he to join Infowars. On the other hand, I do not begrudge Turley representing the Republican Party as a legal advocate, but that is where his allegiance undoubtedly lies as evidenced by his intellectually dishonest argument that Trump’s months long incessant lying and legally borderline conduct all to overturn the election is morally equivalent to isolated examples of similar “fighting words” occasionally uttered by some Democrats. Such a comparison is a damnable lie.

        1. “So just slither away Silberman. Go back to your echo chamber.”

          Said by one who apparently prefers an ‘echo chamber’ — one who obviously has a difficult time hearing opposing views.

  8. The Democrats are trying to punish Trump (and everyone else) for simply pointing out election “irregularities” and for suggesting/claiming the election was tainted by fraud. There is plenty of evidence that, in a fair system, would have triggered a thorough investigation. The Dems prevented that. I hope the defense takes advantage of that open door

  9. “While certainly not responsible for the disgraceful riot in the Capitol, many of them remain accessories to stoking our politics of hate and division.”

    Every single member of Congress and the Senate who failed to actively condemn the violence exercised by the Antifa/BLM people last Spring and Summer are directly “responsible” for those acts.

    That applies even more so to the spineless and culpable Mayors and Governors who purposefully allowed it to happen for months.

    What happened at the capitol was a purposefully engineered PsyOp. But even if it wasn’t, the seeds were sown by the same clowns running this current impeachment PR clown show, which will not result in impeachment.

      1. I’m the anonymous who wrote the post above, but its important I add I agree 100 percent with you on that note. Nancy Pelosi did endorse and excuse anarchy and thus helped set the stage for this when she made that untenable statement, and equally should be removed as speaker and stripped of her committee chairs. If she had half the character she’s always preaching about she’d step down as speaker and show that its not just talk from her. What the President did and incited, is far worse. He was in far more of a position to do damage and he literally invited a mob to the White House then instructed them to march on the capitol to fight and stop the vote. They did. Now we’re all supposed to sit back and say “oh but he didn’t mean it”. Like because Al Capone told Fredo to “talk” to the shop owners it wasn’t Al’s fault Fredo broke their legs. Everyone knew what Al meant, including Fredo and poor old Mister and Mrs Muckenfuss. But that didn’t stop some slimly, shchister Mob lawyer in a fancy suit from arguing because Al never actually said to break their legs, that that’s not what he meant. Anymore than its stopping Mr Turley from arguing that because he said do it “peacefully” ONE time, …with a smile, …that that negates the TWENTY times he instructed them to “FIGHT”. Its not stopping him or his followers from daring to stare eternity into the eye, and declare with a straight face, that when he said with a smirk the ONE time to be peaceful, that he meant exactly that but the TWENTY times he said to fight, … he meant something else.

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