Tag: Donald Trump

Biden is trying to move on from Trump. Will the media let him?

Photo (cc) 2019 by Gage Skidmore

Previously published at GBH News.

President Joe Biden spoke for many of us about 30 minutes into his town hall event on CNN Tuesday night.

“I’m tired of Donald Trump,” he said. “I don’t want to talk about him anymore.”

This week marks the true beginning of Biden’s presidency. Trump is gone, holed up in Mar-a-Lago. We’ve put impeachment behind us, if not the insurrection that sparked it. Surely it’s time to get on with the business of vaccinating the country, dealing with Biden’s $1.9 trillion relief bill and debating issues such as the reopening of schools.

It remains to be seen, though, whether the media can move past their lucrative obsession with Trump. For instance, a little after 4 a.m. today, the lead political story on The Washington Post’s home page was about Biden’s swing through Wisconsin — and immediately below it was the headline “Trump attacks McConnell as ‘political hack,’ says he will back pro-Trump candidates.” At The New York Times, a story headlined “In Milwaukee, Biden Offers Reassurance and Optimism” actually appeared below an account of Michigan Republicans’ ongoing love for the former president.

Breaking up is hard to do.

Biden’s hour-plus appearance before a socially distanced audience of about 50, moderated by Anderson Cooper, felt weirdly normal after four years of belligerence, bluster and boasting. The president frequently got bogged down by details — so much so that he apologized several times for his meandering answers. But he projected decency and compassion, which was no small thing for a nation staggered by the COVID-19 pandemic and economic disaster.

Like many viewers, I was especially struck by his exchange with a mother who said her young children frequently talk about their fear of catching COVID and dying. Her daughter stood with her.

“Kids don’t get COVID very often. It’s unusual for that to happen,” Biden answered before taking a more personal approach, telling the girl she was unlikely to spread COVID to “Mommy and Daddy,” nor them to her. “I wouldn’t worry about it, baby, I promise you,” he said. “Don’t be scared, honey. Don’t be scared. You’re going to be fine. And Mommy is going to be fine, too.” A little cringe-worthy? Sure. But also a demonstration of empathy that resonated with the crowd, which applauded Biden’s answer.

Biden the retail politician was on display in other ways as well. He asked the mother of a 19-year-old who hasn’t been able to get vaccinated despite severe pulmonary problems to meet with him after the event. He told the owner of a microbrewery that he would send him a breakdown of his relief plan for small business if he’d provide his address.

And he made some news, saying there would be enough vaccines for everyone in the U.S. by the end of July, and that he hoped the country would be more or less back to normal by Christmas. He also addressed the threat posed by white supremacists and made a couple of statements sure to displease the progressive wing of the Democratic Party, although he merely repeated what he’s said in the past: he opposes defunding the police, and in fact supports more funds for better screening and training; and he will not go along with calls for massive student-debt cancellation.

That latter issue was the subject of an unusually blunt exchange with a young woman who asked Biden about proposals to eliminate $50,000 worth of student debt. “What will you do to make that happen?” she asked.

“I will not make that happen,” Biden responded, countering with proposals for free tuition for community college and state universities, debt cancellation of up to $10,000 and opportunities for students to work off their debt through public-service jobs.

So far, Biden and his proposals seem to be resonating. His popularity rating at FiveThirtyEight is 54.8% approve and 37.4% disapprove. Yes, it’s early, but that’s essentially the opposite of Trump’s ratings from the day he took office until he left. According to a Quinnipiac University poll, 68% support Biden’s economic relief package, and 61% support his call for a $15 minimum wage. There may be something to Biden’s statement that the nation is “not nearly as divided as we make it out to be.”

But for Biden to succeed, the media need to move on from Trump. I don’t mean they should stand back and applaud Biden’s every move. Skeptical coverage and tough scrutiny are warranted, as with any president. Biden doesn’t deserve a free ride.

What he does deserve, though, is a political press that covers his agenda as the top story of the day, and the Republican Party’s ongoing meltdown as a sideshow — worthy of attention, but hardly worth the massive energy and resources that are being devoted to it at the moment.

“For four years, all the news has been about Trump,” Biden said Tuesday night. “For the next four years, I want the news to be about the American people.”

The media are going to have to change their ingrained habits for that to happen. It’s not going to be easy. But it’s crucial if we’re to have any hope of getting back to some semblance of normal.

McConnell’s hypocrisy shows why Democrats made the right call on witnesses

Mitch McConnell. Photo (cc) 2014 by Gage Skidmore.

And so it’s over. In the aftermath of Impeachment II, the main controversy is about whether the Democrats did the right thing in reversing themselves over calling witnesses. I think they made a wise judgment. And Senate Minority Leader Mitch McConnell’s hypocrisy shows why.

In a blistering speech, McConnell endorsed the entire factual basis of the Democrats’ case against Trump. “There is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said. “The people who stormed this building believed they were acting on the wishes and instructions of their president.” And there was this:

Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence.

Yet McConnell still voted against conviction, relying on the bogus argument that a vote to convict was unconstitutional because Trump is no longer in office.

At the end of all this, no reasonable person doubts that Trump incited the mob — not just on Jan. 6, but over the course of many months. No reasonable person doubts that he was reveling in the destruction, or that Republican Rep. Jaime Herrera Beutler was telling the truth about a toxic exchange between House Minority Leader Kevin McCarthy and Trump. Seven Republicans voted to convict Trump, making this the most bipartisan impeachment in history.

Given all that, it’s time for the Democrats to move on and let the center of gravity finally shift from Donald Trump to President Joe Biden.

Not everyone agrees, of course. The normally pragmatic Josh Marshall was apoplectic Saturday, writing in Talking Points Memo that the decision not to call witnesses was “inexplicable and maddening, to many or most Democrats outside the chamber because Democrats appeared to hold all the cards and all the votes and yet capitulated entirely.”

But I thought Boston College historian Heather Cox Richardson made a better argument:

While it’s reasonable to imagine that witnesses would illustrate Trump’s depravity, it seems entirely likely that, as Trump’s lawyers continued simply to lie and their lies got spread through right-wing media as truth, Americans would have learned the opposite of what they should have.

Instead, the issue of Trump’s guilt on January 6 will play out in a courtroom, where there are actual rules about telling the truth.

We have lived through a terrible time, and it’s not over yet. The future direction of the Republican Party is far from certain, and it’s easy to imagine a thoroughly Trumpified party recapturing the House in 2022 as a result of gerrymandering and low voter turnout.

What we all need to concentrate on for the next two years is good governance — pushing for policies and programs that help people and, as best we can, putting the Trump era behind us. Biden is off to a good start, but a continuing obsession with Trump will hold him back. And that will hurt everyone.

Become a member of Media Nation.

Myth and reality about the Capitol Police

I heard a lot of unsupported criticism of the Capitol Police immediately after the Jan. 6 insurrection, much of it to the effect that they were in on it. Well, maybe a few were. But what I saw at the time, and what’s become even more clear during the impeachment trial this week, is that the vast majority of them did their jobs courageously even though they were badly outnumbered — maybe by design.

Long knives, short tempers — and ridiculous theories about the election

Gen. Michael Flynn. Photo (cc) 2016 by Gage Skidmore.

On Monday, The New York Times published the results of a massive investigation into Donald Trump’s attempts to overturn the results of the election.

Today comes the tragicomic conclusion: a report by Axios on an insane meeting that took place at the White House on Dec. 18 at which the conspiracy-addled lawyer Sidney Powell tried to get herself named a special counsel to investigate Dominion voting machines while Gen. Michael Flynn (he of the two guilty pleas) and the White House staff screamed profanities at each other.

The reporters are Jonathan Swan, who conducted a hard-hitting interview of Trump last year, and Zachary Basu. The whole thing is so crazy that it’s hard to pick any one excerpt, but this will do. Below, Byrne is Patrick Byrne, the chief executive of Overstock.com and a Trump backer. Herschmann is Eric Herschmann, a White House senior adviser. Patrick Cipollone was the White House counsel. Swain and Basu write:

At one point, with Flynn shouting, Byrne raised his hand to talk. He stood up and turned around to face Herschmann. “You’re a quitter,” he said. “You’ve been interfering with everything. You’ve been cutting us off.”

“Do you even know who the fuck I am, you idiot?” Herschmann snapped back.

“Yeah, you’re Patrick Cipollone,” Byrne said.

“Wrong! Wrong, you idiot!”

Herschmann and others who were at least partly tethered to reality were afraid that Trump was going to go along with Powell and unleash her upon state and local election officials. As Swain and Basu write, “Trump expressed skepticism at various points about Powell’s theories, but he said, ‘At least she’s out there fighting.'”

In the end, though, Trump was somehow coaxed into listening to reason. How bad was it? Toward the end, we see that Rudy Giuliani actually had a calming effect on the situation, which is surely the first time anyone has said that about him in many years.

Correction: I originally misspelled Jonathan Swan’s name.

Axios perpetuates #bothsides journalism in the midst of insanity

Marjorie Taylor Greene. Photo (cc) 2020 by FYNTV FetchYourNews.

Many mainstream news organizations are genuinely struggling to come to terms with the current dynamic in Washington: an often feckless Democratic Party opposed by crazy and dangerous Republicans. It’s not an entirely new scenario, and has in fact been building since Newt Gingrich’s speakership in the mid-1990s. But it’s become acute since the Trump-inspired insurrection of Jan. 6 and the embrace of QAnon and sedition by large swaths of the GOP.

But while responsible journalists are trying to figure out how to navigate this reality, there’s another group that continues to embrace #bothsides-ism at its most mindless. At the center of this is Axios, which combines the politics-as-sports sensibility of Politico, whence it sprang, with bullet points and lots of boldface.

Take, for instance, “The Mischief Makers.” According to Axios reporters Alayna Treene and Kadia Goba, leaders in each of the two major parties are being tormented by “troublemakers” and “political thorns” within their ranks. And who are these feisty backbenchers?

Well, on the Republican side is House member Marjorie Taylor Greene, who has called for the execution of  Speaker Nancy Pelosi and other top Democrats and who believes that wildfires are caused by a Jewish-controlled laser in outer space. Also getting a nod are Matt Gaetz, Louie Gohmert and Mo Brooks, all of whom supported the insurrection.

What Democrats could possibly be as dastardly as that? Why, the Squad, of course! Because they’re liberal and/or progressive. So Alexandria Ocasio-Cortez, Ilhan Omar and Ayanna Pressley all get a shoutout, as well as like-minded newcomers such as Jamaal Bowman and Cori Bush.

In the Senate, Republicans Ted Cruz, Rand Paul and Josh Hawley, all of whom supported Trump’s coup attempt, are equated with Democrats Kyrsten Sinema and Joe Manchin, who are more conservative than most of their party peers, and independent Bernie Sanders, who’s to the left of most of his colleagues but who’s been notably supportive of President Joe Biden.

But wait! There’s to-be-sure paragraph buried amid all this:

Not all are created equal. Democrats often contend with an outspoken, very progressive wing of their caucus and try to keep centrists from crossing party lines. Republicans have senators who led efforts to invalidate the 2020 election results and flirted with the same conspiracy theories that fueled groups involved in the Capitol siege.

No kidding.

So, does anything Axios publishes cause genuine harm? It’s hard to say. But Axios is aimed primarily at insiders — congressional staff members, lobbyists and other journalists. And many of them would love nothing more than validation that they can return to business as usual.

Cynical takes such as this can serve to normalize what’s going on in Washington, providing the narcotic drip we need to help us forget that many powerful Republicans attempted to overthrow the results of the election less than a month ago. Five people died, and we haven’t even begun to get to the bottom of what happened.

Charlie Baker’s missed opportunity

Walt Whitman in 1863. Photo via the Smith Collection / Gado / Getty Images.

I thought Gov. Charlie Baker missed an important opportunity at the end of his State of the Commonwealth speech Tuesday night. Instead of calling out those among his fellow Republicans who’ve decided to support Donald Trump’s deadly insurrection, or announcing that he’s leaving the Republican Party to become an independent or to start something new, he — what?

Besides putting COVID in the rear-view mirror once and for all, my biggest wish for 2021 is for all of us to take Walt Whitman’s charge to heart. Be curious — not judgmental.

This was preceded by “Before I close, I want to offer some thought on the mood of the nation and the events of the past year.” And then he went into a long spiel about “Saturday Night Live,” social media and Walt Whitman. To put it mildly, he failed to deliver on the expectations he had raised. And it’s OK to be judgmental about a failed coup attempt.

For five years, Trump outrage has fueled media profits. So now what?

Trump supporter in North Carolina last September. Photo (cc) 2020 by Anthony Crider.

Previously published at GBH News.

Last Friday, The New York Times published the sort of story we’ve become quite familiar with — a blockbuster about Donald Trump. Times reporter Katie Benner revealed that, during Trump’s final days as president, he’d considered removing the acting attorney general as part of a plot to overturn the election results in Georgia.

For the past five years, such reporting has been very, very good for national news organizations. Trump outrage has provided elite newspapers, cable news stations and other prominent outlets with a jolt they hadn’t seen since the internet began eating away at their audience and revenue several decades earlier. But now it’s coming to an end.

The question is whether the Trump-era boost can outlast Trump.

In an interview with the public radio program “On The Media” over the weekend, co-host Brooke Gladstone asked McKay Coppins of The Atlantic — a news organization that has done especially well during the Trump years — if “Trump was good for the journalism business or bad?”

Coppins’ answer: “Well, from a bottom-line perspective, almost certainly good.”

The numbers tell quite a story. Consider The Times and The Washington Post, the two national newspapers that became most closely associated with covering the chaos and corruption of the Trump presidency. Between early 2017 and November 2020, The Times’ digital circulation grew from about 2 million to more than 7 million; 4.7 million are paying for the core news product, with the rest signed up for cheaper extras such as the crossword puzzle and the cooking app.

Growth has been equally impressive at The Post — from perhaps 100,000 to 200,000 in early 2016, according to an estimate by the newspaper industry analyst Ken Doctor, to 1 million at the end of 2017, to 3 million in November 2020, Axios reported.

Or consider cable news, which has experienced an enormous upsurge in audience throughout the Trump years. Figures compiled by Heidi Legg, a journalist and a research fellow at Harvard’s Institute for Quantitative Social Science, show that the combined prime-time audience of CNN, MSNBC and Fox News rose from about 3.1 million in 2015 to nearly 7.2 million in 2020, with the Trump-friendly Fox far ahead of the pack for most of that period.

In a similar vein, it’s instructive to look at what happened last February after NPR journalist Mary Louise Kelly conducted a contentious interview with Trump’s secretary of state, Mike Pompeo, who falsely claimed that Kelly had broken ground rules and angrily brought the proceedings to an abrupt end. The Post’s Erik Wemple reported that donations to NPR and member stations soared immediately afterward, though no numbers were available.

With Trump giving way to President Joe Biden, a far more low-key and disciplined politician, many journalists are breathing a massive sigh of relief as they contemplate returning to something like a normal life. But will audience and revenue resume the downward track they had been on for years before Trump demanded everyone’s unwavering attention?

There are reasons for hope. Following the November election, CNN — the highest quality of the three cable outlets, flawed though it is by the same talk-show mentality as its competitors — moved solidly into first place following years of ratings dominance by Fox News. And there are signs that it may stay there.

As CNN media reporter Brian Stelter wrote in his “Reliable Sources” newsletter, only a portion of the Fox audience has gravitated to the even Trumpier outlets Newsmax and OANN. More have given up on cable news altogether, most likely shifting to entertainment programming. If a larger share of the viewing public is watching CNN and its liberal counterpart, MSNBC, then that’s a boost for factual information.

Moreover, when Trump was running for president in 2015 and 2016, the public was still getting used to the idea that everything on the internet wasn’t free. Five years later, we are becoming accustomed to paying not just for news but for video services like Netflix and music apps like Spotify. Even with Biden slowing down the metabolism of the news cycle, media habits developed during the Trump years may be ingrained at this point. And it’s not as though there’s a shortage of crises to stay informed about, from COVID-19 and the economy to racial justice and the aftermath of the Jan. 6 Trumpist insurrection.

One last point: The Trump era may have been good for the business of journalism, at least on the national level (the local news crisis grows worse and worse). But it may not have been so good for the practice of journalism. In his interview with Brooke Gladstone, McKay Coppins spoke ruefully about how easy it was for reporters like him to gain a national following simply by trashing Trump.

“How do we move forward when you don’t have a president who’s shattering norms and breaking precedent and doing outlandish things every day?,” he asked, adding: “It’s really important that we not have our business models depend on that being the case. Because if they are, all of us are going to be pushed to insert artificial drama into every story we do, and that’s not good for anyone.”

The real story in Washington is dramatic enough. A Democratic president with razor-thin margins in Congress will attempt to govern while many of the most prominent members of the Republican opposition appear to favor authoritarianism over democracy — and who, like Sen. Rand Paul, R-Ky., continue to spout lies about election fraud. Trump aside, we may be moving through the country’s most dangerous moment since the Civil War.

That ought to be enough to hold anyone’s interest — and to keep the revenues flowing so that we can pay for the journalism that we need.

Cruel and unusual: Trump’s death penalty rampage demeans us all

Lisa Montgomery

Previously published at GBH News.

Donald Trump’s presidency has been defined by shocking cruelty. Sometimes it’s been deliberate, as with his practice of taking children from the families of undocumented immigrants. Sometimes it’s the result of wanton neglect and cynical blame-shifting, as with his deadly handling of the COVID-19 pandemic.

There’s been such a never-ending torrent or horrors for the past four years that some of his misdeeds are in danger of being overlooked. One that we should be focused on, though, is the spree of federal executions he’s ordered during his final months in office.

Starting last July, 13 people were executed — six of them since the election, when Trump was defeated by Joe Biden, who has said he will not use the death penalty once he becomes president. By contrast, there had been only three federal executions since the presidency of John F. Kennedy, all presided over by George W. Bush.

Trump was in such a rush to kill that the final execution, of Dustin John Higgs, was carried out just a few days before Biden’s inauguration. And in a textbook illustration of how inequitably the ultimate punishment is used, Higgs was put to death for killing three women even though it was an associate, Willis Haynes, who shot them to death. Haynes received a 45-year sentence.

Capital punishment is a relic of the past — a barbaric measure not worthy of a decent society. Western Europe, Canada, Australia, South Africa and all of South America have either abolished it or no longer use it. Our peers are repressive regimes such as China, Saudi Arabia, Iran and a handful of others (including, oddly enough, Japan).

And despite our ignominious status as a country that still executes people, capital punishment has been waning even in the United States, according to the Death Penalty Information Center.

“At the end of the year,” the center said in a recent report, “more states had abolished the death penalty or gone ten years without an execution, more counties had elected reform prosecutors who pledged never to seek the death penalty or to use it more sparingly; fewer new death sentences were imposed than in any prior year since the Supreme Court struck down U.S. death penalty laws in 1972; and despite a six-month spree of federal executions without parallel in the 20th or 21st centuries, fewer executions were carried out than in any year in nearly three decades.”

Trump, lest you forget, called for New York to reinstate the death penalty following the conviction of five young men in a violent assault against a female jogger in Central Park a generation ago; they were later exonerated. Not much has changed. Trump’s current spate of executions, according to ProPublica, has been marked by stunning breaches of protocol and procedure.

“Officials gave public explanations for their choice of which prisoners should die that misstated key facts from the cases,” ProPublica reported. “They moved ahead with executions in the middle of the night. They left one prisoner strapped to the gurney while lawyers worked to remove a court order. They executed a second prisoner while an appeal was still pending, leaving the court to then dismiss the appeal as ‘moot’ because the man was already dead. They bought drugs from a secret pharmacy that failed a quality test. They hired private executioners and paid them in cash.”

Those who are sentenced to die for their crimes have generally done terrible things. They tend not to inspire much sympathy even from those who oppose capital punishment in the abstract. Yet, occasionally, innocent people are put to death. And even those who are guilty often have complicated backstories.

The New York Times opinion section recently wrote about two especially harrowing cases. One was that of Lisa Montgomery, who was executed on Jan. 13, becoming the first woman to die at the hands of the federal government in 70 years. In 2004, Montgomery cut a baby out of the belly of a pregnant woman who was left to die. It was a horrific murder, the sort of act for which the death penalty would seem to be designed. (Incredibly, the baby lived.)

Yet Rachel Louise Snyder of American University, writing in The Times, painted a picture of Montgomery that was itself so horrendous that it’s hard to accept that justice required her execution. Repeatedly abused sexually by her father and his friends, brain-damaged by repeated blows to the head, Montgomery was a profoundly damaged woman who should have been allowed to live out her life in the custody of federal authorities.

The other case was more typical. Alfred Bourgeois was a Black man, as are a disproportionate share of those who are put to death. He was the subject of a long profile by The Times’ Elizabeth Bruenig, who witnessed his execution on Dec. 11. Bourgeois, too, had done something unimaginably awful — he slammed his 2-year-old daughter’s head repeatedly into the cab of his truck in 2002, killing her.

Yet, according to Bruenig, the reason Bourgeois was sentenced to death rather than life in prison was that he was also accused of having sexually abused his daughter. “Mr. Bourgeois’s lawyers — and there were many over time — were ultimately unable to overcome the lurid accusation,” Bruenig wrote. “Media reports inevitably focused on the appalling notion of a father raping his own toddler.” But according to Bruenig, there was good reason to believe that it never happened.

The Trump nightmare is nearly over. But it didn’t end soon enough for Lisa Montgomery, Dustin John Higgs, Alfred Bourgeois and the 10 other victims of Trump’s bloodlust. Few will mourn them. Yet their deaths in our name are an indelible stain on all of us. Let’s hope the Biden presidency represents real progress toward decency and justice — and not merely a four-year interregnum before we embrace our darker natures once again.

The pros and cons of charging Trump with incitement to violence

Donald Trump in 2016. Photo (cc) by Gage Skidmore.

Suzanne Nossel, the chief executive of PEN (Poets, Essayists and Novelists) America, is concerned that the second impeachment of Donald Trump could be used to weaken the legal standard for convicting someone of incitement to violence. I differ with her New York Times op-ed, and in fact I think criminal charges could be brought against Trump without doing any harm to the First Amendment.

Nossel, a lawyer, rightly differentiates between the impeachment proceedings, which are based on a layperson’s definition of incitement, and the legal definition. By any reasonable measure, Trump whipped a mob into a frenzy on Jan. 6 and pointed it in the direction of Capitol Hill, a reckless action that led to five deaths, including that of a police officer.

The legal standard, as Nossel explains, is much more narrow, based on the 1969 case of Brandenburg v. Ohio, in which a Ku Klux Klan leader, Clarence Brandenburg, was convicted of incitement under Ohio state law after telling those attending a rally that they should take “revengeance” upon Black and Jews. The Supreme Court overturned the conviction, ruling that Brandenburg’s threat wasn’t imminent or specific enough.

The Brandenburg decision was the culmination of a series of court rulings going back to Schenck v. United States (1919), in which Justice Oliver Wendell Holmes Jr. offered his famous metaphor that the law does not protect falsely shouting “fire” in a crowded theater. The standard the court arrived at was that speech could be banned if it presented a “clear and present danger.”

The Schenck decision is often reviled as repressive today, but it was a step forward at the time. For the next 40 years, the court sought to refine and narrow what was meant by a clear and present danger, finally arriving the Brandenburg standard. As Nossel explains, the legal definition of incitement is based on the idea that the language in question was intended to cause violence; that the threat of violence must be imminent; and that the language must be likely to result in violence.

I read the transcript of Trump’s remarks, and it seems to me that they could support an incitement conviction. First of all, there is the context. Trump lies, at great length and in fine detail, about the outcome of the election. You’ve heard it all before, but right near the beginning he says this:

All of us here today do not want to see our election victory stolen by emboldened radical left Democrats, which is what they’re doing and stolen by the fake news media. That’s what they’ve done and what they’re doing. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.

Now you might say Trump actually believes this. But over the weekend it was reported that Trump, in the White House, has railed about his defeat with associates. According to Axios, he has gone so far as to say, “Can you believe I lost to that fucking guy? That fucking corpse?” So he knows. He’s lying. And though that lie doesn’t amount to incitement, it prepares the crowd for what follows.

The most incendiary language comes at about the 18-minute mark:

After this, we’re going to walk down and I’ll be there with you. We’re going to walk down. We’re going to walk down any one you want, but I think right here. We’re going walk down to the Capitol, and we’re going to cheer on our brave senators, and congressmen and women. We’re probably not going to be cheering so much for some of them because you’ll never take back our country with weakness. You have to show strength, and you have to be strong. We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.

Trump immediately follows up with what could be considered exculpatory language: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” But we’ve heard him do this many times over the years. If you’re on the jury, would you let him off the hook because, in course of an hour-long speech aimed at stirring up a frenzy, he used the word “peacefully” — once?

Later in his speech, he says, “We got to get rid of the weak congresspeople, the ones that aren’t any good, the Liz Cheneys of the world, we got to get rid of them. We got to get rid of them.” Again, maybe there’s just enough ambiguity here — that sentence is preceded by “a year from now, you’re going to start working on Congress.” That sounds like he could be referring to primary challenges. But Cheney and other Republicans who voted for impeachment are receiving death threats, The Daily Beast reports, and it’s hard to make the case that Trump’s words didn’t have more than a little something to do with it.

I think we also need to keep in mind that Trump took part in a rally at which his son Donald Trump Jr. and one of his lawyers, Rudy Giuliani, spoke even more recklessly than he did. Giuliani spoke of a “trial by combat,” which he ludicrously claimed later was a reference to “Game of Thrones.” Trump Jr., among other things, said:

It [the gathering on the National Mall] should be a message to all the Republicans who have not been willing to actually fight, the people who did nothing to stop the steal. This gathering should send a message to them: This isn’t their Republican Party anymore. This is Donald Trump’s Republican Party.

Again, Junior could, at least in theory, have been referring to primary challenges. But he was speaking to an angry mob, not a gathering of precinct captains. We have to look at what he had to know the effect of his words would be. There’s no reason we have to interpret what he said in a light most favorable to him.

In other words, it’s possible that Giuliani and Trump Jr. could be in legal jeopardy. And it’s also possible that a jury could use what they said to clarify the president’s own statements.

Would it be wise to prosecute Trump for incitement once he’s out of office? Probably not. This is a close enough call that there’s a good chance he’d be acquitted, which would make the case against him look like a politically motivated attack by his enemies. The best route, it seems, is to hope that the Senate convicts him by the necessary two-thirds vote followed by banning him from holding office in the future, which only requires a majority.

In any case, a possible incitement prosecution is likely to be the least of Trump’s concerns once the clock hits 12:01 p.m. on Wednesday. He faces financial ruin and endless legal problems, both civil and criminal. If he pardons himself, that will be challenged in court. If he prevails, he still faces trouble in a number states, which are not bound by a federal pardon.

But an incitement prosecution is an interesting thought exercise. It could well be that Trump went further than Clarence Brandenburg, sheets and all, in unleashing mob violence. That’s quite a distinction.

Please consider becoming a paid member of Media Nation for just $5 a month. You’ll receive a weekly newsletter with exclusive content. Click here for details.