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."
Graham considers this part of a pattern that occurred throughout Trump's presidency. During Special Counsel Robert Mueller's investigation into Russian election interference, the anti-Trump crowd zeroed in on whether his campaign "colluded" with the Kremlin, and in his first impeachment trial, attention was on terms like "quid pro quo" and "blackmail," which, Graham argues, led to "intense semantic fights that distracted from the basic fact that Trump had extorted Ukraine's government to assist him in the election." Read more at The Atlantic.