But the charge as written not only makes bipartisan support difficult; it also creates a hornet’s nest of legal argumentation—about the First Amendment, how to prove “incitement” and the meaning of “insurrection”—that could complicate and impede Senate conviction. The attack on the Capitol can be more simply, and less controversially, stated in terms of the federal crime of “seditious conspiracy.”
By using the word incite, the draft focuses on the speech given by Trump before the storming of the Capitol. This narrow focus has caused some lawyers and scholars, including Trump’s own previous impeachment defense attorney Alan Dershowitz, to say Democrats are trying to punish constitutionally-protected speech. The very potential for debate gives Congressional Republicans, including those who may disapprove of both Trump’s recent actions and inactions, an opportunity to oppose impeachment.
It is also not necessary to characterize the events that transpired as an insurrection, which may strike some as an exaggeration, when the behavior of those who attacked the Capitol fit the federal crime of “seditious conspiracy” (which actually carries twice the ten-year sentence of insurrection). This crime is committed whenever two or more people conspire “by force to seize, take, or possess any property of the United States,” which is exactly what took place on Wednesday. Also, those who attacked the Capitol did so with the explicit purpose of preventing Congress from carrying out its legal duty to certify the election, thus committing another form of seditious conspiracy: conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”
Because “seditious conspiracy” perfectly describes the crimes committed on January 6, why not make the straightforward charge that Trump was a party to this conspiracy? Someone can be considered part of a criminal conspiracy even if they did not know “all the details of the crime or all of the members of the conspiracy,” as long as they shared the general objective of the conspiracy,