During former President Donald Trump's impeachment trial, senators should be seeking to answer a political question, but they're instead been left to ponder a legal one, David A. Graham writes for The Atlantic.
The House's single article of impeachment alleges Trump incited a violent insurrection on Jan. 6, but Graham believes focusing so heavily on the term "incitement" provides Trump's defense team with "an opening" to argue, as they've already done, that he was speaking "metaphorically" at the rally which preceded the breaching of the Capitol last month. "In legalizing what is rightly a political matter, however," Graham writes, noting that Trump should instead be on trial, more broadly, for his months-long efforts to overturn the presidential election results, "the managers inadvertently encouraged recourse to the legal definition of incitement, and in particular to the Supreme Court's test for what constitutes the crime of incitement in Brandenburg v. Ohio, which, in the interest of protecting free speech, creates a difficult bar to surmount in a criminal court."
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