What is 'incitement' -- and what does it mean for Trump's impeachment defense?

The article of impeachment passed by the House in January reads, in part: 'Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.' Read the whole thing here.

Posted: Feb 11, 2021 1:21 PM
Updated: Feb 11, 2021 1:25 PM

The allegation of "incitement" is central to the impeachment case House Democrats are making against former President Donald Trump because it ties his words and actions to the January 6 insurrection on Capitol Hill.

The article of impeachment passed by the House in January reads, in part: "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States." Read the whole thing here.

House impeachment managers have devoted most of their presentation this week to the results, airing graphic video footage and audio from the attack on the Capitol -- which put members of the Senate, who will vote on the charges, personally at risk. Their argument is that Trump was responsible for what happened, even though he did not join the mob that marched from his January 6 rally near the White House to the US Capitol, where electoral votes were being tallied to seal Joe Biden's victory.

Here's what they said:

  • "He had incited the attack. The insurgents were following his commands," said Texas Democratic Rep. Julian Castro.
  • "He directed all of the rage that he had incited to January 6. That was his last chance to stop the peaceful transition of power," said Rep. Eric Swalwell of California. He later added, "This was not just any old protest. President Trump was inciting something historic."
  • "This was deliberate," said Virgin Islands Del. Stephanie Plaskett. "And because the President of the United States incited this, because he was orchestrating this, because he was inviting them, the insurgents were not shy about their planning."

Trump's defenders, namely Sen. Ted Cruz of Texas, have argued that Trump can't be held accountable because the people who made up the mob are "entitled to be idiots" and Trump was just whipping up the crowd, which is what politicians do.

"The President's language at times is a little overheated," Cruz told Sean Hannity on Fox News. "But if you look at the language he used, saying things like 'fight,' saying things like 'go retake our country', if that is now incitement then we better prepare a long line to indict every candidate for office, anyone who's ever run."

We should note here that Cruz, in the days before the January 6 riot, was himself egging on election-skeptics to fight against the counting of electoral votes and promising them "we will win." He also lodged the first of two Republican objections to the counting of the votes, challenging Arizona's results -- at around the same time the first wave of rioters reached the Capitol grounds. So Cruz has a personal interest in Trump's words not being incitement.

Cruz also pointed out Trump told the festering mob to be peaceful, which he did, once -- as opposed to the 20 times he told the crowd to "fight," according to the impeachment managers. You can read Trump's whole January 6 speech here.

But what is incitement, exactly?

The dictionary definition of "incite," according to Merriam-Webster, is simple: "to move to action : stir up : spur on : urge on." Trump clearly did that, when he directed his supporters to march toward Capitol Hill from a rally held under the "Stop the Steal" banner.

But there's a much more detailed definition in US law, which is:

"...the term 'to incite a riot', or 'to organize, promote, encourage, participate in, or carry on a riot", includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts."

Federal courts said Trump did not incite a mob back in 2016 when he told supporters to turn on protesters, who later sued the President.

The New York Times has a thorough examination of how courts have looked upon "incitement." Read that here.

The history of 'incitement'

Oliver Wendell Holmes, the First Amendment-protecting Supreme Court justice who pushed the idea that a person can't shout fire in a crowded theater, built the "clear and present danger" test for speech. He argued Congress could only regulate speech when it represented a "present danger of immediate evil or an intent to bring it about."

Those words were written in the World War I era, when Congress and President Woodrow Wilson actively limited what Americans could say against the government and war effort.

More recently, the Supreme Court has protected all sorts of speech, like flag burning, crude political hyperbole and, importantly in this instance is Brandenburg v. Ohio, which allows advocating crime as long as it doesn't incite imminent lawlessness. Read more on that from CNN's Eliot McLaughlin.

Trump's legal team repeatedly cited that case in a legal brief laying out their free speech-focused defense.

This is a political case

But impeachment is not a criminal or a civil case, it's a political one, and the impeachment managers are arguing "high Crimes and Misdemeanors," which is different than a regular court case.

Did Trump encourage people who turned into a mob to march on the Capitol? Indisputably. Did he tell them to "fight?" Yes. Is that inciting a mob against democracy? We shall see, when it comes time for the Senate to vote.

Clearly, the idea of incitement brushes up against the First Amendment protection of free speech, and Trump's defense has already focused on this constitutional protection.

That he's seeking the protection of the Constitution after arguably inciting a mob to stop the counting of electoral votes -- which would have short-circuited the Constitution -- is not something they've addressed.

Indiana Coronavirus Cases

Data is updated nightly.

Cases: 941120

Reported Deaths: 15315
CountyCasesDeaths
Marion1282511983
Lake633041097
Allen53609758
Hamilton43827447
St. Joseph41906590
Elkhart33545490
Vanderburgh30383448
Tippecanoe26820249
Johnson23609417
Hendricks22250341
Porter21737346
Clark17409229
Madison17366384
Vigo16108281
Monroe14466191
LaPorte14311239
Delaware14070221
Howard13865272
Kosciusko11418135
Hancock10841165
Warrick10674177
Bartholomew10542168
Floyd10430205
Wayne9959226
Grant9130204
Morgan8865160
Boone8389111
Dubois7710123
Dearborn762289
Henry7608130
Noble7413101
Marshall7362128
Cass7176117
Lawrence6957153
Shelby6584111
Jackson656785
Gibson6156107
Harrison603786
Huntington600195
Montgomery5805105
DeKalb574291
Knox5494104
Miami542488
Putnam536768
Clinton533665
Whitley524953
Steuben497268
Wabash483592
Jasper479160
Jefferson470092
Ripley454277
Adams444068
Daviess4169108
Scott405865
White391857
Clay390857
Greene388392
Decatur385296
Wells384983
Fayette374278
Posey359941
Jennings353156
Washington332047
LaGrange321375
Spencer317835
Fountain316555
Randolph312888
Sullivan307449
Owen283863
Starke280064
Fulton277553
Orange275859
Jay254837
Perry251652
Carroll243729
Franklin239338
Rush234130
Vermillion233250
Parke219820
Tipton209655
Pike207639
Blackford168334
Pulaski163551
Crawford146018
Newton144345
Benton142516
Brown135346
Martin128217
Switzerland125810
Warren114616
Union96911
Ohio79711
Unassigned0479

Ohio Coronavirus Cases

Data is updated nightly.

Cases: 1365800

Reported Deaths: 21596
CountyCasesDeaths
Franklin1522221560
Cuyahoga1344852327
Hamilton976051320
Montgomery670271141
Summit562091047
Lucas50900863
Butler47417655
Stark41580976
Lorain31567532
Warren30001331
Mahoning26963639
Clermont25628292
Lake24585417
Delaware22313145
Licking20487241
Fairfield20420221
Greene20309272
Trumbull19866509
Medina19796287
Clark17879328
Richland16314234
Portage16130229
Wood15681208
Allen14115256
Miami13786253
Muskingum12641152
Wayne11946238
Columbiana11708241
Tuscarawas10953269
Marion10725148
Pickaway10465129
Scioto10324127
Erie9747171
Ross9436176
Lawrence8755125
Hancock8458141
Ashtabula8317185
Geauga8173156
Belmont8140187
Jefferson7527172
Huron7423128
Union731851
Washington7183120
Athens697165
Sandusky6848134
Darke6756136
Knox6671122
Seneca6358137
Ashland5948113
Auglaize587188
Shelby5727101
Brown564171
Mercer557890
Defiance5483101
Madison543371
Crawford5425114
Highland541581
Fulton530683
Clinton525580
Logan512182
Preble4994110
Putnam4833106
Guernsey470364
Williams459282
Perry449852
Champaign445964
Ottawa436884
Jackson425362
Pike388843
Morrow383851
Fayette375853
Coshocton374766
Adams360675
Hardin359069
Gallia347356
Holmes3259108
Henry324668
Van Wert314670
Hocking301769
Wyandot280658
Carroll262652
Paulding242243
Meigs213942
Monroe189749
Noble169340
Morgan165829
Harrison157940
Vinton138118
Unassigned05
Fort Wayne
Cloudy
54° wxIcon
Hi: 59° Lo: 47°
Feels Like: 54°
Angola
Cloudy
52° wxIcon
Hi: 55° Lo: 46°
Feels Like: 52°
Huntington
Cloudy
54° wxIcon
Hi: 57° Lo: 47°
Feels Like: 54°
Decatur
Cloudy
54° wxIcon
Hi: 57° Lo: 47°
Feels Like: 54°
Van Wert
Cloudy
53° wxIcon
Hi: 59° Lo: 47°
Feels Like: 53°
Sunshine and warmer air return to round out the work week, but the warm-up is brief.
WFFT Radar
WFFT Temperatures
WFFT National

Community Events