The three principal reasons this second impeachment was a sham are these:
1). The Senate did not have jurisdiction to hear this case because President Trump is no longer president; he is a private citizen, and the Constitution requires removal of a sitting president.
2). Even if the Senate retained jurisdiction to hear the case, everything President Trump said on Jan 6th is constitutionally protected speech under our First Amendment and did not nearly rise to the level of incitement.
3). President Trump was not afforded due process during this rushed impeachment effort.
There were essentially two grounds of acquittal and Senators, sitting as jurors in the case, had a right to vote to acquit on either ground.
The first is that the Senate had no jurisdiction to hear the case because President Trump was no longer the president and the Constitution requires removal of the president. Chief Justice Roberts’ refusal to preside over the impeachment trial highlights its illegitimacy.
The second ground is that even if Senators believed the Senate retained jurisdiction to hear the case despite the fact President Trump was no longer president, President Trump’s speech on Jan 6th was constitutionally protected speech. As such, there is simply no credible argument for impeachment on grounds of incitement.
This was constitutionally protected speech because the “Brandenburg principle” stands for the landmark proposition that “core political speech” does not amount to incitement and may be prohibited only when there exists “a clear and present danger of imminent lawless action.” Here, President Trump used the words “peacefully and patriotically make your voices heard” to describe the actions he anticipated which means he was asking his supporters to march and demonstrate with their voices and nothing else. This is not incitement. This is core political speech used as part of a political protest and President Trump, and all of us, are entitled to engage in this form of speech.
[In addition, the breach occurred while President Trump was still speaking, which mortally wounds the allegation that Trump’s words stirred up the crowd. There is also mounting evidence that the Capitol attack was preplanned].
By the way, if President Trump’s comments are the legal standard for what qualifies as “incitement” and “insurrection,” what about the highly inflammatory comments made by Democrat members of Congress last year that unquestionably encouraged and condoned rioting by mobs who attacked cities and committed an orgy of property destruction, arson, violence, and murder.
For that matter, recall the 2018 Supreme Court nomination hearing of Justice Brett Kavanaugh. That insurrection involved hundreds of Democrat protestors who stormed their way into the Capitol, charged into the hearing room, and interrupted the hearing while threatening lawmakers as they yelled and screamed. They cornered Senators in the hearing room, hallway and even in their offices. Senators and Senate staffers said they felt frightened, intimidated, and overwhelmed by the mob fearing they would be physically injured or even killed. However, there was no resulting media outrage and Nancy Pelosi and Chuck Schumer later defended the protest and protestors because it occurred in the “People’s House.” Do you see the hypocrisy?
Finally, this rushed impeachment scheme unquestionably violated President Trump’s due process rights by not providing he and his defense team an opportunity to mount a defense to and/or formally challenge the articles of impeachment.
This incident never rose to the level of an impeachable offense. Rather, it has been a politically motivated effort to convict President Trump so he could then be disqualified from ever running for president again. This farce has undermined our Constitution and the rule of law and the acquittal is necessary, just, and timely.