While Trump never mentioned specific acts of violence and only once, in a single brief mention, did he tell his supporters "to peacefully" make your voices heard," the speech as a whole was a call to imminent lawless action, as many in the mob construed it. Both the Washington Post and the New York Times have reported that some of the Capitol marauders actually thought they were acting on direct orders from Trump.
In inciting the mob, Trump arguably violated two federal statutes that prohibit insurrection and rebellion against the United States as well as seditious conspiracy.
Whether or not Trump is ever criminally prosecuted, he without question committed an impeachable offense. The history of American impeachment clearly establishes that such offenses may encompass both criminal and noncriminal conduct. According to the House of Representatives' procedural practice manual, "Less than one-third of all the articles [of impeachment] the House has adopted have explicitly charged the violation of a criminal statute or used the word 'criminal' or 'crime' to describe the conduct alleged."
In Federalist Paper No. 65, Alexander Hamilton described impeachable offenses as "those" which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself." [emphasis in original]
The First Amendment cannot be invoked to save Trump from an abuse of power so egregious and deadly. To do so would be to turn the amendment on its head. As Joshua Matz and Norm Eisen argued in a January 13 op-ed in Politico, "the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements."
It's now up to the Senate to sit in judgment on Trump's defilement of the Constitution. To borrow a line from the Broadway musical Hamilton, each and every senator should know, "History has its eyes on you."
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