The Problem with "Legal Twitter"

"Incite" in its *ordinary meaning* fairly captures Trump's role in the Capitol attack. Entirely proper to use that term.

Fact that ordinary meaning of term has been artificially constricted in context of criminal prosecutions is irrelevant to its use in impeachment trial.

— Ed Whelan (@EdWhelanEPPC) February 11, 2021

Yes, because this is not a judicial proceeding. No judge is going to give this jury a "charge," a set of questions they must answer as findings of fact to which the judge will apply the law.

Error may go back to impeachment resolution, which should have been broader. But its single charge of "incitement of insurrection" need not be construed to set forth Brandenburg standard. Almost as if House managers have confused themselves.

— Ed Whelan (@EdWhelanEPPC) February 11, 2021

This actually echoes Raskin's statement earlier about shouting "FIRE!" in a crowded theater, a piece of dicta and legal mythology that persists despite it never being the law, and not being the law now. Was that an "unforced error"? Or a recognition of the audience he is talking to, i.e., the American public as well as 100 Senators. This is not time for a legal argument (or a scholarly one), and Raskin knows the power of that piece of legal mythology as well as he knows the wisdom of citing Brandenburg without actually relying on it.  He's rebutting what he expects to hear from Trump's lawyers.  It's a pre-emptive strike.  Even in a court of law, it constitutes good closing argument material.

Agree with Ed here that the heightened Brandenburg v. Ohio First Amendment standard for criminal cases has zero applicability in an impeachment trial. If Trump incited an insurrection in any common-sense way, which he unquestionably did, he's guilty. https://t.co/9u2AYDg331

— George Conway (@gtconway3d) February 11, 2021

Yes, but as I said: this was a rebuttal argument, an anticipatory strike. Perfectly valid in context; wise and sound argument, even.

House manager Neguse: "Did the president act willfully?"

You don't need to show willfulness. Recklessness is enough.

— Ed Whelan (@EdWhelanEPPC) February 11, 2021

Really got to keep the lines clear, here.  The legal distinction between "willfully" (I gripped the wheel and stomped the accelerator when little Suzie ran into the street to retrieve her ball.) and "recklessly" (I looked down at my radio as little Suzie lost control of the ball and headed for the street in front of me.) is not one that need be considered here.  No judge, no jury instructions, no judicial review of this outcome.  What the managers need to show is a case so politically compelling the Senators dare not vote against it.  This, I submit, they have done.

That doesn't mean the GOP Senators don't fear the near future enough to accept that argument.  But the House managers have done the best job they could, in this forum.  And I still think this trial opens the door to public acceptance of a criminal trial of the former President, if only as the exception which proves the rule.