Where does "the right" get this stuff? The Impeachment edition

Jack Doppelt

 Feb. 9, 2021 

Again, I’m watching Fox News’ coverage, as I did on Jan. 6. I’m not watching to be convinced whether or not Trump should be convicted on one count of "incitement of insurrection" for encouraging the Jan. 6 riot at the U.S. Capitol. That’s about Trump.

I’m watching to fathom one underlying question that will define our futures as a nation: Where does "the right" get the stuff that has them believing dangerous nonsense? Of course, the media, including social media, propel this stuff. Yet, what stuff catches fire and why? 

A primer on one place where the right gets this stuff can be found in one program that aired the day before today’s impeachment trial. It aired on Newsmax, a fellow right wing network that is giving Fox News a run for its ratings. 

Co-hosts Sean Spicer (yes, that Sean Spicer) and Lindsay Keith interviewed Alan Dershowitz, whom they welcomed as a constitutional scholar, legal professor at Harvard and “author of a million books.” Bona fides to impress. 

Newsmax-Feb. 8, 2021

Dershowitz was on the team of lawyers who represented Trump at his first Senate impeachment trial. His novel argument in that hearing was that if Trump believed he was acting both in his own political interest -- and at the same time in the country’s interest in withholding military aid to Ukraine until Ukraine announced an investigation into then-former Vice President Biden -- those actions cannot be impeachable. As he put it, "If a president does something which he believes will help him get elected in the public interest, that cannot be the kind of quid pro quo that results in impeachment," he argued. The irony was that his argument, laughably bizarre as it was, seemed to be what caught on with the GOP and the right. Bona fides enhanced. 

Spicer and Keith last night gushed over every word of Dershowitz. At the end of the interview, they thanked him for breaking things down so the audience could get the answers as they try to make sense of the impending impeachment trial. 

The simple answers Dershowitz divined were these: 

Trump can’t be impeached for speech. He claimed that Trump’s speech was no different from other speech, which of course is protected by the 1st Amendment. He went into professed con law mode by conceding at least that speech can go beyond 1st Amendment protection when it is “directed to inciting or producing imminent lawless action” and is “likely to incite or produce such action.” 

The issue clearly is whether Trump’s speech in the context of the election fraud buildup he harnessed for his electoral college day rally did that. Dershowitz pointed to the 1969 Brandenburg case about a Ku Klux Klan rally in Ohio to make his distorted points. He failed to say that the landmark holding in the case was directed at an Ohio law that went too far in limiting speech. In striking down a clearly over-broad Ohio law, the case rejected a doctrine that emerged from WWI called “clear and present danger.” 

The justices in Brandenburg were struggling with the line that preserves the advocacy of abstract ideas but can punish speech that incites imminent lawless action. Justice William O. Douglas recalled the words of Oliver Wendell Holmes who wrote prophetically in 1925: “Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth.” The justices warned: “Eloquence may set fire to reason… If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.” 

Without needing to refer to Trump’s incitement as eloquent, it had the power to “set fire to reason.” The incited Trumpers came to DC because he had provoked them “to stop the steal.” Still, they all had time to resort to their perverted reasoning in coming to DC or attending the rally. That took time. Trump’s persuasiveness had won those days with them, as his persuasiveness had attracted 74 million votes. That’s speech, and as the justices put it, “government has no power to invade that sanctuary of belief and conscience.” 

Once in DC with Trump ranting persuasively to his MAGAs, did he incite them to commit “imminent lawless action” and was action likely to happen? 

That’s where the virtues and ambiguities of the videos of Jan. 6 leave us. That’s what makes Jan. 6 and Trump unique, as they should be. We shouldn’t be impeaching or punishing impassioned speakers? 

Dershowitz actually claimed that Trump couldn’t have intended to incite “imminent lawless action” that was likely to happen. After all, as Dershowitz conjured, “most of the people who heard the president didn’t even go to the Capitol, most of the people who went to the Capitol didn’t go inside, most of the people who went inside didn’t destroy property, and hardly anybody killed people.” 

Apparently, it can’t be intended incitement to “imminent lawless action” if not everyone is fomented to act instinctively, lawlessly, violently and murderously? Pardon? 

Imminent lawless action needn’t result in people being killed. Though it did. Invading the Capitol, threatening people, destroying property, putting lawmakers, their staffs and their families in fear of their lives will do just fine. Watch the videos. Hundreds did that. 

Many of the lawbreakers chanted: “Stop the steal.” “Treason.” Defend your Constitution.” “Fight for Trump.” Listen to the videos. 

Trump had pledged as he dispatched his followers to the Capitol: “We’re gonna walk down to the Capitol and I’ll be there with you.” He must have gotten waylaid after that. Like any ersatz movement leader, he abandoned them to march on their own. What good are lambs if they need to be accompanied to the slaughter? 

Dershowitz wants the right to believe that the impeachment trial is about run-of-the-mill speech, the kind that, as he puts it, could result in political activists from the right or left put at risk of government encroachment. 

Even more scary, Dershowitz envisions, is to allow impeachment any time an office holder leaves office. Who’s next, Nikki Haley? Be very worried, Republicans. Bill Clinton? Could happen to you, Dems. Dershowitz knows a straw man when he creates one. 

Trump is being impeached for actions he took and actions he fomented while he was president, not years before or after. 

To the credit of Democratic impeachment managers, they opened today’s proceedings by re-framing what the Dershowitzes and right wing “thinkers” call the unconstitutionality of impeaching a former official. 

What it really would be providing is a January exception that would allow a Trump-sort to do whatever he wants with impunity in the final days in office to prevent accountability because days later, he’s no longer in office. As we all know, Donald Trump would never reserve audacious acts like rampant pardonings until the final days in office. 

Dershowitz reserved his most virulent pent up anger yesterday for his legal scholar colleagues, led by his nemesis and Harvard colleague Laurence Tribe. Dershowitz seemed to hanker for a food fight with Tribe. To Dershowitz, the difference between himself and the Tribes of the legal establishment is that he, Dershowitz, is principled. 

The constitutional scholars, 144 of them of all political stripes, issued a public letter to Trump’s legal team [read it here], that, according to Dershowitz on both Newsmax and in The Hill, demanded, “in effect, that they not make arguments to the Senate regarding the First Amendment.” Dershowitz referred to the letter as blatant intimidation, as did The Hill’s headline: “Impeachment scholars are wrong to intimidate lawyers of Donald Trump.” Dershowitz characterized the letter as “threatening” in advising the Trump team that they “don’t you even dare” raise the First Amendment. “If you do, it will be unethical and subject you to disciplinary proceedings, including possibly disbarment,” he said raising his voice in emphasis, which elicited a Pavlovian snicker from Spicer. 

I don’t interpret the letter as intimidation. Moreover, I don’t find the quotes used by Dershowitz to be in the letter. What the letter says is, “No reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked.” 

The letter reads more like a petition, speaking of the First Amendment. 

Uncanny, though that Dershowitz would invoke the term “intimidation” when part of the argument to convict Trump of impeachment includes the lead up to the Jan. 6 events when Trump four days earlier called election officials in Georgia to convince them to find votes that would undermine Georgia’s election results. [Listen to excerpts or read a transcript from the Jan. 2 call here.] Trump had it all planned. The election was rigged, 11,780 votes need to be found, and if they’re not found and the election officials don’t report the missing votes, it’s a criminal offense and it will be incumbent on Trump to report their crime. 

Now that’s intimidation. the severity of which is being investigated by Fulton County prosecutors in Georgia.

As for Dershowitz, now that’s chutzpah (חֻצְפָּה), the attributes of which he prides himself as having.

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