I’ve previously addressed some of the problems with impeaching President Trump for allegedly committing incitement (here and here), as the House is poised to do in the impeachment article Democrats have proposed, entitled “Incitement to Insurrection.” I want to add an important point, one that is basic but easy to overlook, which I first encountered in prosecuting a notorious terrorist for incitement in the 1990s.
It is this: The word incitement is vague in the legal sense. Under due-process principles, a defendant may not be prosecuted on a vague statute because it does not put persons of ordinary intelligence on sufficient notice of what the law forbids. Colloquially, the vagueness of incitement is not readily apparent because the common understanding of the word is straightforward: to incite is to stir a person to action. The problem of vagueness arises in the context of criminal law because of the First Amendment.
Under free-speech principles, we have the liberty to stir people to action. We can say things that inspire and offend, prod and provoke. This is a staple of political expression, the core of constitutionally protected speech. Because of the First Amendment, it is permissible to criminalize only a narrow category of speech that is in the nature of incitement: namely, solicitation to acts of violence that are intended to and have a likelihood of imminently causing violent lawlessness. Incitement is thus too broad a word in this context because it implicates actions beyond what the criminal law is permitted to reach.
So if that’s true, why was I able to convict my defendant, the Blind Sheikh (Omar Abdel Rahman) on two incitement counts — one for calling for bombing attacks on American military installations, and another calling for the murder of Egypt’s then-president, Hosni Mubarak (who died last year)? Because while the crime is referred to as “incitement” for purposes of shorthand reference, the word incitement does not actually appear in the applicable law.
The statute is Section 373 of the federal criminal code. It is entitled “solicitation to commit a crime of violence,” and it states in pertinent part (my italics):
Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances strongly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be [be guilty of a felony punishable by up to 20 years’ imprisonment].
I have italicized portions for two reasons.
First, notice how narrow the criminal offense is as compared to all statements that aptly might be described as incitement. Incitement is actionable only if it involves explicitly pleading or pushing another person to use physical force in a criminal way, and under circumstances where there is strong evidence to believe that the violent outcome was intended by the speaker.
Second, that being said, it is inconceivable that President Trump’s speech, reckless and condemnable as it was in light of his high duties as president, could form the basis for a criminal incitement prosecution. There is no evidence that he asked or demanded that anyone commit an act of violence, and no evidence that he intended a violent act to be committed — much less evidence that “strongly corroborates” an intent that violence be committed.
As we’ve repeatedly noted, impeachment does not require the pleading of an indictable criminal offense, let alone proof beyond a reasonable doubt that such an offense has been committed. Nothing prevents Congress from invoking the word incitement in an article of impeachment.
Nevertheless, Congress should not do it. In crafting what is commonly referred to as the incitement statute, lawmakers took pains not to use the word incitement in order to avoid constitutional problems — to avoid suppressing First Amendment-protected speech, and to ensure clarity, as opposed to vagueness, in punitive laws.
In drafting an impeachment article, particularly one adopted with no hearings and no due process, the House should heed its own example and describe the president’s misconduct without using loaded words.