Former President Donald Trump has once again been exonerated and found not guilty by the U.S. Senate in his second impeachment trial on all charges that he incited the Capitol riot on Jan. 6 by his speech at the Save America Rally when in fact he urged protesters to “peacefully and patriotically make your voices heard.”
Presumably, now is the time for the country to move forward from the Trump presidency, independent of whether Trump decides to remain involved in national politics, including in the 2022 Congressional midterms or in 2024 if he decides to once again challenge President Joe Biden when he will be potentially facing reelection.
For now, it is clear that whether or not Trump decides to run for president again, it will be the American people — and not the U.S. Senate — who decides his fitness for office.
Nobody should be surprised at this outcome as the Jan. 6 speech was constitutionally protected by the First Amendment. In Brandenburg v. Ohio in 1969, the Supreme Court found “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In that case, mere advocacy of violence or lawless action was not enough to sustain a conviction and at the Jan. 6 speech, there was no such advocacy, thus failing the Brandenburg test.
This is a victory for free speech.
The House simply could not prove its case, because once again, there was no crime. Article II, Section states “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” And Article I, Section 3 states “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…”
Further hurting the House’s case was the fact that the House impeached Trump prior to his term ending but did not hold the trial until after it ended. Upon expiration of his term, as a constitutional and legal matter, the impeachment became moot.
Now, there are still many things to sort out from the riot, including those who are facing charges for pre-planning the attack according to Justice Department filings that show that some of the rioters were planning the Capitol breach as early as Jan. 1 on Facebook.
The FBI also revealed via a wanted poster that the two bombs placed outside the Republican National Committee and the Democratic National Committee set to go off on Jan.6 were planted the night before on Jan. 5.
And, separately, a Black Lives Matter activist John Earle Sullivan who was also charged in the Capitol riot told the Epoch Times “he knew of plans to storm the Capitol” which he had seen in “undergrounds chats and things like that.”
And Steven D’Antuono, the head of the FBI field office in Washington, D.C. told reporters on Jan. 12 that “We developed some intelligence that a number of individuals were planning to travel to the D.C. area with intentions to cause violence.”
So, there is still more to come out about the Capitol riot. However, it will not be an adequate defense if rioters try to say Trump incited them. The Senate has closed the book on that, finding for all time that Trump is not guilty. Now, let’s move on.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
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