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Opinion: Don’t Let Trump’s Second Trial Change the First Amendment
rfenst Online
#1 Posted:
Joined: 06-23-2007
Posts: 39,096
The legal definition of incitement shouldn’t give way in the process.

By Suzanne Nossel
NYT Opinion

"As the country reels from the spectacle of a Capitol overtaken and top U.S. officials scrambling for their lives, the House voted on Wednesday to impeach President Trump for, among other things, “inciting violence against the Government of the United States.” Lawmakers are right to insist that Mr. Trump pay the highest price for fomenting a deadly assault on democracy; he should be convicted and banned from holding public office.

But in pursuing this vital end, legislators should ensure that their extraordinary case against Mr. Trump cannot later be construed to broaden the legal definition of incitement in general. “Incitement to violence” is a strictly defined legal concept that allows speech meeting certain criteria to be punished notwithstanding the Bill of Rights. If the closely watched proceedings against Mr. Trump can be interpreted as precedent-setting insofar as the law of incitement is concerned — morally speaking or otherwise — we would risk a perverse result whereby those impeaching Mr. Trump for his abuses in office could make it more perilous for future dissenters and reformers to hold the powerful to account.

Incitement is one of several narrowly delineated exceptions to the First Amendment; others include libel, slander and what are called “true threats.” These categories of harmful expression can be punished by the government despite the First Amendment’s expansive protection of free speech. The problem is that “incitement,” as we use the term colloquially — language aimed to goad others on to action — is a much broader concept than what is recognized under the law.

The legal test for incitement was established by the U.S. Supreme Court in Brandenburg v. Ohio, a 1969 case involving a Ku Klux Klan leader named Clarence Brandenburg who had urged revenge against the federal government but had not prodded his followers to take violent action. The Court found that the Ohio statute under which Brandenburg had been convicted was unconstitutionally overbroad and would deter and punish too much potential speech. The court held that for incitement to fall outside the First Amendment’s protections, three criteria must be met. First, the advocacy must be intended to spur lawlessness; Second, the encouraged lawbreaking must be imminent, or about to happen right away. Third, the speech must be likely to cause such lawbreaking to occur. Before Brandenburg, jurisprudence had defined incitement more loosely, permitting restrictions on speech based on a mere “bad tendency” to bring about a harm the government had a right to prevent.

The tighter Brandenburg test reflected a shift toward a wider berth for political speech that had begun with Justice Oliver Wendell Holmes’s dissent in the 1919 case of Abrams v. United States. That landmark case involved a group of immigrants who were prosecuted under the 1917 Espionage Act for distributing pamphlets opposing U.S. intervention in Russia. Although their conviction was upheld, Holmes’s famous dissent introduced the concept of an open marketplace of ideas, warning Americans to be “eternally vigilant against attempts to check the expression of opinions that we loathe.” Holmes’s analysis set in motion a long series of decisions that over time expanded protections for activists, communists, labor organizers and others voicing controversial or dissident opinions.

Donald Trump is the first modern president to be seriously accused of engaging in incitement himself. At a 2016 campaign rally, he badgered the crowd to remove a group of demonstrators, saying “Get ’em out of here.” The protesters were pushed and shoved and one of them was punched in the stomach as he and the others were forcibly removed. At that point, Mr. Trump said “don’t hurt ’em.” The injured later sued Mr. Trump arguing that he had incited a riot. But in September, 2018 a Cincinnati appeals court found that Mr. Trump’s “don’t hurt ’em” admonition, even if it seemed like an afterthought, meant that he had neither advocated nor intended riotous violence.

If a court were to judge the president’s statements leading up to the Capitol Hill riot, it might well find that the latter two of the three Brandenburg criteria were satisfied: violent mayhem erupted right after Trump’s fiery speech at the Ellipse, meeting the requirements of both imminence and likelihood. But as incendiary and irresponsible as Mr. Trump’s Jan. 6 remarks were, a court would be unlikely to conclude that they advocated violence under the strict operative legal standard.

In his rambling diatribe, Mr. Trump lied brazenly and made bellicose but ambiguous statements like “you have to show strength” and “if you don’t fight like hell, you’re not going to have a country anymore.” In calling upon people to join him in marching to the Capitol, he said that their goal would be to imbue Republicans with “the kind of pride and boldness that they need to take back our country.” He urged marchers to “peacefully and patriotically make your voices heard.” Mr. Trump never quite encouraged violence, legally speaking, and, as he had at the 2016 rally, put on record that the approach to resistance that he contemplated was peaceable.

To many, the context of the last four years made the eruption of violence on Capitol Hill seem anything but shocking, and the case for incitement in the colloquial — and the political — sense seems clear. But the strict legal test for incitement demands that the relationship between the targeted speech and the elicited action to be proximate, meaning that Trump’s long track record of prior incendiary statements cannot be grounds for a finding of incitement on Jan. 6. Evidence that violence was plotted ahead of time, and that some marauders set off for the Capitol before some of the president’s most inflammatory remarks, might also undercut any legal finding that Mr. Trump’s words were a primary cause of the havoc.

That the law as it stands probably would not recognize the president’s remarks as incitement does not necessarily mean that it should not do so. Mr. Trump’s claim earlier this week that his remarks outside the White House were “totally appropriate” is preposterous: He deceived his supporters, disgraced his office and ordered the subversion of democracy. The rise of social media, the heated rhetoric of the Trump era, and recent spikes in hateful speech and hate crimes have raised important questions about whether decades-old First Amendment precedents can adequately arbitrate hazardous speech in an age of digital media and demagoguery. It is reasonable to ask whether a more expansive definition of incitement ought to be considered; for example, if Mr. Trump was found to have been aware of plans for an attack when he spoke, that could color the interpretation of his words. It is also fair to ask whether the authority wielded by those in high positions should inform the incitement test, recognizing, for example, that the legitimization of extreme tactics by a sitting president is far more damaging to democracy than similar claims by an ordinary citizen. Scholars have debated these issues in law review articles, and new ideas may soon work their way into the law.

But as they hastily grapple with Mr. Trump’s unprecedented pillage of constitutional norms, Congress should take care not to inadvertently lower the First Amendment guardrails for speech more generally. In debating the charges against Mr. Trump at his trial, members of Congress and those commenting on the issues should make clear that their vernacular references to incitement are distinct from how the term is used in its strictly legal sense.

Progressives have a strong stake in keeping the First Amendment carve-out for incitement fairly narrow. Historically, this exacting standard has protected not just right-wing activists like Brandenburg, but also dissenters on the left, including socialists, antiwar protesters, flag-burners and civil rights advocates. In the 1982 case of NAACP v. Claiborne Hardware, for example, the Supreme Court found that a civil-rights leader’s threat to break the “damn neck” of anyone flouting a boycott of white stores was not incitement, even though acts of violence against boycott violators were later committed. The court found no evidence that the organizer ever “authorized, ratified, or directly threatened” violence, and rejected claims that he had a “duty to repudiate” the violence that followed. The leeway the Claiborne court acknowledged for an advocate to “stimulate his audience with spontaneous and emotional appeals” is essential to the work of movement organizing.

Despite Claiborne, conservatives still try to use the doctrine of incitement to deter or punish agitation for social change. In 2016 a police officer sued the Black Lives Matter activist DeRay Mckesson after a rally that Mr. Mckesson organized erupted into violence and the officer was injured — even though there was no evidence or even suggestion that Mr. Mckesson had expressly sanctioned the mayhem. Still, it took an appeal to the Supreme Court to reject lower court rulings that would have held Mr. Mckesson liable for coordinating the protest, gutting the Brandenburg test. (Rather than tossing the case entirely, the court sent it back to Louisiana for further proceedings, meaning that Mr. Mckesson’s legal predicament persists.)

Last year, the South Dakota Legislature, targeting anti-pipeline protests, passed a new law creating a crime of “incitement to riot” that defined riots as acts of violence that can include as few as three people. If the stringent legal test for incitement were watered down in order to punish Mr. Trump, the result could be heightened legal exposure for countless others who deserve protection for their speech and assembly rights. Moreover, the strict standard in the United States for incitement has been influential globally and is referenced in a seminal 2011 U.N. human rights resolution that addresses how religious intolerance can be combated without trampling free expression. Any proposals to ease the U.S. legal standard should take into account the risk of legitimizing authoritarian leaders around the world who use spurious charges of incitement to quash their political opposition.

That the legal doctrine of incitement to imminent violence should not be expediently molded to meet the moment does not mean that Mr. Trump should go unpunished. The framers of the Constitution delineated the parameters of impeachment broadly, knowing they could not foresee every scenario in which it might be warranted. Scholars generally agree that the grounds for impeachment are not limited to committing legally prosecutable crimes; there is a reason the power to impeach was granted to the legislative (and therefore political) branch rather than the judicial (and therefore legal) branch. There is a very strong case that Mr. Trump’s efforts to thwart the Constitution, subvert the election results, encourage insurrection and intimidate officials into obstructing the democratic process meet the impeachment standard.

It is important, as we move toward an exigent impeachment trial, that we avoid conflating what is impeachable with what is illegal. It is up to Congress to decide whether Mr. Trump’s behavior violated his oath to preserve, protect and defend the Constitution. It is up to courts to decide when incendiary language meets the legal standard of incitement, consistent with the First Amendment. In performing its constitutional role in impeachment, Congress should take special care not to alter the constitutional standard for incitement."

Suzanne Nossel (@suzannenossel) is the chief executive of Pen America and the author of “Dare to Speak: Defending Free Speech for All.”

teedubbya Offline
#2 Posted:
Joined: 08-14-2003
Posts: 95,637
I’ll read it later rnfest no time now but the impeachment process to me is not a legal process despite the term trial. It’s a political process. I know you know that and I’m not saying it for that purpose. I think the 1st amendment is safe but always good to keep on the radar and to protect.

Edit - still haven’t read but glancing up at the last paragraph suspect I largely agree.
Gene363 Online
#3 Posted:
Joined: 01-24-2003
Posts: 30,660
This article is inflammatory, "top U.S. officials scrambling for their lives", seriously? While it was wise to evacuate and avoid the mob, I suggest they only thing that imperiled their lives was a guilty conscience. Though I am certain many members of the parliament of whores are not afflicted by guilt or throughly drown it in alcohol.
RayR Online
#4 Posted:
Joined: 07-20-2020
Posts: 8,793
NYT again. Zzzzzzzzzz..... I think Suzanne Nossel believes leftist free speech is sacrosanct, everybody else's free speech should be mischaracterized as disinformation and conspiracy theories.

PEN America gave Obama the 2020 PEN America Voice of Influence Award. Isn't that nice? BARF!
HockeyDad Offline
#5 Posted:
Joined: 09-20-2000
Posts: 46,063
Wait...people are worried about an attack on the first amendment? As long as what they are saying matches the official media/government narrative they should have nothing to worry about.
teedubbya Offline
#6 Posted:
Joined: 08-14-2003
Posts: 95,637
More and more evidence is showing how bad this was. Some frat party.
RayR Online
#7 Posted:
Joined: 07-20-2020
Posts: 8,793
teedubbya wrote:
More and more evidence is showing how bad this was. Some frat party.


So say the inventors of evidence.
HockeyDad Offline
#8 Posted:
Joined: 09-20-2000
Posts: 46,063
teedubbya wrote:
More and more evidence is showing how bad this was. Some frat party.


I think I read that exact title on a CNN article! More and more news articles, not evidence. The insurrection line isn’t going to stick. Your grandchildren will not be studying the great Trump/Viking revolution in history class.
teedubbya Offline
#9 Posted:
Joined: 08-14-2003
Posts: 95,637
I think you are wrong. But we will see.
RayR Online
#10 Posted:
Joined: 07-20-2020
Posts: 8,793
teedubbya is a plagiarist like Xiden.
rfenst Online
#11 Posted:
Joined: 06-23-2007
Posts: 39,096
Gene363 wrote:
This article is inflammatory, "top U.S. officials scrambling for their lives", seriously? While it was wise to evacuate and avoid the mob, I suggest they only thing that imperiled their lives was a guilty conscience. Though I am certain many members of the parliament of whores are not afflicted by guilt or throughly drown it in alcohol.

Gene, Gene, Gene the article is about the history of free speech and the laws concerning "incitement" vs. "political speech." We are going to be hearing a lot about this in the Senate (and courts should Trump be charged with a crime).
fog
teedubbya Offline
#12 Posted:
Joined: 08-14-2003
Posts: 95,637
The irony of projecting TDS
HockeyDad Offline
#13 Posted:
Joined: 09-20-2000
Posts: 46,063
teedubbya wrote:
The irony of projecting TDS


You still recovering from that?
rfenst Online
#14 Posted:
Joined: 06-23-2007
Posts: 39,096
Compliments of another thread by clintCigar:

https://youtu.be/drTQgahLDSI
Gene363 Online
#15 Posted:
Joined: 01-24-2003
Posts: 30,660
rfenst wrote:
Gene, Gene, Gene the article is about the history of free speech and the laws concerning "incitement" vs. "political speech." We are going to be hearing a lot about this in the Senate (and courts should Trump be charged with a crime).
fog


Yes, the trial may be the platform in which any evidence of election fraud presented. Or not, depending on the inevitable and convoluted manipulation of Congressional rules.

I stand by my opinion of the article as inflammatory. Would you have keep reading if the author spoke of the quiet and orderly entry of Capitol Building visitors welcomed by Capitol police holding open the doors to welcome them in.

delta1 Offline
#16 Posted:
Joined: 11-23-2011
Posts: 28,753
hold on...the article concludes that Trump would likely not be found guilty...that strict standards for First Amendment Rights need to be preserved...

which may be loosened if Trump is found guilty in this case...

weasel words are so confounding, and Trump has been a master at it


TW's right...impeachment is totally separate process from criminal prosecution...

I read somewhere that the US attorney in D.C. was leaning towards not charging Trump criminally, specifically citing First Amendment protections afforded by precedent...
rfenst Online
#17 Posted:
Joined: 06-23-2007
Posts: 39,096
Gene363 wrote:
I stand by my opinion of the article as inflammatory. Would you have keep reading if the author spoke of the quiet and orderly entry of Capitol Building visitors welcomed by Capitol police holding open the doors to welcome them in.


I read the article because it was a good recap of a week or two or more of the Freedom of Speech class I took during law school like 30 years ago. I had to read every one of those cases in full, before class, just to be prepared and able to keep up with the discussion/lectures...
HockeyDad Offline
#18 Posted:
Joined: 09-20-2000
Posts: 46,063
delta1 wrote:

I read somewhere that the US attorney in D.C. was leaning towards not charging Trump criminally, specifically citing First Amendment protections afforded by precedent...


He’s trying to resist the dark side but the temptation is strong!
teedubbya Offline
#19 Posted:
Joined: 08-14-2003
Posts: 95,637
Quiet and orderly entry of the capital?

Christ.
Gene363 Online
#20 Posted:
Joined: 01-24-2003
Posts: 30,660
teedubbya wrote:
Quiet and orderly entry of the capital?

Christ.


Proved my point, thank you very much.
teedubbya Offline
#21 Posted:
Joined: 08-14-2003
Posts: 95,637
Maybe to yourself. Open your eyes and mind. Do t just pick a favorite side and dig in. Wrong is wrong.
Gene363 Online
#22 Posted:
Joined: 01-24-2003
Posts: 30,660
teedubbya wrote:
Maybe to yourself. Open your eyes and mind. Do t just pick a favorite side and dig in. Wrong is wrong.


RollEyes Oh, like some people always react the same, regardless of the content. Maybe you didn't read all the comments, maybe better reading comprehension, or putting things in context before responding would help you understand my point to Robert about the inflammatory statement I noted in the article. Or, maybe you just don't care and will always react the same to anything I post, regardless of the content. Think
teedubbya Offline
#23 Posted:
Joined: 08-14-2003
Posts: 95,637
Gene it’s not about you. It’s about the content. I don’t now and have never had a personal issue with you.

Meh.
HockeyDad Offline
#24 Posted:
Joined: 09-20-2000
Posts: 46,063
Why do you hate Gene so much?
teedubbya Offline
#25 Posted:
Joined: 08-14-2003
Posts: 95,637
I think he dated my mama then left
HockeyDad Offline
#26 Posted:
Joined: 09-20-2000
Posts: 46,063
I know they say don’t blame the children in situations like that but it was probably your fault.
Mr. Jones Offline
#27 Posted:
Joined: 06-12-2005
Posts: 19,357
Buuuuurrrpppp!

😴😴😴😴😴😴😴
teedubbya Offline
#28 Posted:
Joined: 08-14-2003
Posts: 95,637
HockeyDad wrote:
I know they say don’t blame the children in situations like that but it was probably your fault.



My adopted daddy drank because I cry
Gene363 Online
#29 Posted:
Joined: 01-24-2003
Posts: 30,660
teedubbya wrote:
Gene it’s not about you. It’s about the content. I don’t now and have never had a personal issue with you.

Meh.


My apologies, I know it's not me, hey, I'm a really nice person most of the time. Angel It's my opinions and probably the unforgivable, taking Trump's side.
DrafterX Offline
#30 Posted:
Joined: 10-18-2005
Posts: 98,506
yep, your prolly on da list now.... Mellow
teedubbya Offline
#31 Posted:
Joined: 08-14-2003
Posts: 95,637
Gene363 wrote:
My apologies, I know it's not me, hey, I'm a really nice person most of the time. Angel It's my opinions and probably the unforgivable, taking Trump's side.



It’s not unforgivable any more than my thoughts on who and what trump is. In the end we are both just piss ants in this whole game. We disagree terribly on this subject but it isn’t personal. To me the other side is not the enemy. Well except for drafter.
DrafterX Offline
#32 Posted:
Joined: 10-18-2005
Posts: 98,506
Mad
teedubbya Offline
#33 Posted:
Joined: 08-14-2003
Posts: 95,637
I’m sorry
delta1 Offline
#34 Posted:
Joined: 11-23-2011
Posts: 28,753
have you two actually met?
izonfire Offline
#35 Posted:
Joined: 12-09-2013
Posts: 8,642
teedubbya wrote:
My adopted daddy drank because I cry

How many daddies have you adopted???
I know you're into daddy porn...
RayR Online
#36 Posted:
Joined: 07-20-2020
Posts: 8,793
I think this is one of his daddy's

https://bigleaguepolitics.com/married-lincoln-project-co-founder-john-weaver-accused-of-grooming-young-men-offering-jobs-for-sex/
MACS Offline
#37 Posted:
Joined: 02-26-2004
Posts: 79,584
Dude's out of office in 6 days. Really?

Dems... how fkn petty can you possibly get? Rhetorical question...
frankj1 Offline
#38 Posted:
Joined: 02-08-2007
Posts: 44,211
I was thinking to just let it go too, but McConnell got me to realize that it isn't about time, it's about not establishing a precedent in which it's no big deal to allegedly encourage violent attacks on the government
delta1 Offline
#39 Posted:
Joined: 11-23-2011
Posts: 28,753
me too...but lines have to be drawn, so I get it...pragmatism be damned

when the turtle stamped his approval on the impeachment, lotsa GOP leadership grew some nards...

but Liz Cheney was ahead of all the boys, saying Trump must be impeached first...so she's got the biggest balls among the GOP


McConnell's long-game is clear...Trump is an absolute anchor to the future of the GOP and the chain must be cut immediately, before he drowns everybody...McConnell says he's ready to calendar the impeachment trial in the Senate, after the inauguration...by then, Schumer will be in charge...
rfenst Online
#40 Posted:
Joined: 06-23-2007
Posts: 39,096
frank wrote:
it isn't about time, it's about not establishing a precedent in which it's no big deal to allegedly encourage violent attacks on the government

Yes.
And it will also give Trump time to put a defense team together. We could see Dershowitz again!
rfenst Online
#41 Posted:
Joined: 06-23-2007
Posts: 39,096
delta1 wrote:
...McConnell says he's ready to calendar the impeachment trial in the Senate, after the inauguration...by then, Schumer will be in charge...
Schumer is going to be interesting to watch. Let's see how deft he can be compared to McConnell.

MACS Offline
#42 Posted:
Joined: 02-26-2004
Posts: 79,584
frankj1 wrote:
I was thinking to just let it go too, but McConnell got me to realize that it isn't about time, it's about not establishing a precedent in which it's no big deal to allegedly encourage violent attacks on the government


Can you point out exactly what he said that incited violence, Frank? That actually may have been the impetus to make people storm the capitol? I 100% believe we were f--ked. I 100% believe the vote was not fair, and it was stolen. Nothing Trump could ever say would make me commit a crime against my country.
teedubbya Offline
#43 Posted:
Joined: 08-14-2003
Posts: 95,637
Trump lost in a landslide but claims the opposite falsely. That’s petty.

Read the articles of impeachment. It’s only 2-3 pages. Even Liz Cheney agreed.
CheapPrick Offline
#44 Posted:
Joined: 11-25-2019
Posts: 535
izonfire wrote:
How many daddies have you adopted???
I know you're into daddy porn...


Oh, sure, it always comes down to that!
teedubbya Offline
#45 Posted:
Joined: 08-14-2003
Posts: 95,637
We all have to have a hobby.
delta1 Offline
#46 Posted:
Joined: 11-23-2011
Posts: 28,753
my daughter was a staunch Trump supporter who was absolutely depressed when Trump lost...my SIL converted her to conservatism...it's tough when you are pulling for the losing candidate...

I felt that in 2016...wasn't a big fan of Hillary, but I really thought Trump was unfit to be POTUS...so his victory was shocking to me...but I didn't think he stole it...Dems ignored Americans they took for granted...

we were having lunch at my house, watching Fox News and first saw the violent takeover of the Capitol, where plainclothes cops had their guns out and pointed at rioters trying to break down the doors...Ant was jazzed when the camera man and on street reporter picked up three black Trump supporters among the sea of white rally attendees......the Fox newscaster reported the violence happened immediately after Trump spoke to his crowd at the rally a few blocks down the street, and the folks who were at the rally came directly to the Congress, and some busted their way in...

after lunch, my daughter went home to monitor the news...we turned off the TV so our grand daughter could nap

later that day, even my daughter said they were appalled after listening to Trump's speech at the Stop the Steal rally...she felt Trump was responsible

they took down their Trump/Pence 2020 banner that was displayed above their front door...


edit: if Trump didn't want the takeover of the Congressional Building, he could have put a stop to it as soon as he found out...instead, he watched it for hours on TV until Biden went on TV and demanded Trump to call off his peeps...within minutes, Trump told his "very special people," who he "really loved", to go home
MACS Offline
#47 Posted:
Joined: 02-26-2004
Posts: 79,584
teedubbya wrote:
Trump lost in a landslide but claims the opposite falsely. That’s petty.

Read the articles of impeachment. It’s only 2-3 pages. Even Liz Cheney agreed.


You failed, miserably, to answer the question. Which leads me to believe, much like the media... you cannot support your assertions with facts.

PLEASE post your facts here. I'm asking nicely, and politely, for you to show me the proof of what you say.
teedubbya Offline
#48 Posted:
Joined: 08-14-2003
Posts: 95,637
MACS you can look all over in here and find my thought. I don’t bait easily unless it’s master bait. I owe you nothing and have been pretty open with my thoughts, read the articles of impeachment. At this point they are the point of record rather than the white noise.

The problem with most trump defenders is they want to look through the toilet paper role and ignore the things outside the vision. This one isn’t really even hard to see unless you don’t want to. The articles are very very clear and well written. They spell it out
delta1 Offline
#49 Posted:
Joined: 11-23-2011
Posts: 28,753
here's a post from another thread in response to the question....

delta1 wrote:
he spent the past year or so getting his supporters to believe if he lost, it was a rigged and a stolen election...stoking the base

he lost...he said it was a fraud a million times, filed more than 60 lawsuits...lost them all...stoking the base

getting his backers all riled up...told a number of false stories of voter fraud...beating the drum...beating the drum...stoking his base...organized several rallies and protests about the stolen election...stoking the base

told all his followers to gather up at the Save America rally on Jan 6....stoking the base...spoke to them for more than an hour, getting them hopped up about fraud, a stolen election, and losing their country...how they couldn't let the guy steal the election...they wouldn't have a country...stoking the base...we gotta fight...let's walk over there and show them how to be strong...I'll be right with you...stoking accomplished

dude's a master manipulator if you are willing to be manipulated



https://www.usnews.com/news/politics/articles/2021-01-13/transcript-of-trumps-speech-at-rally-before-us-capitol-riot


https://abcnews.go.com/Politics/trump-told-supporters-stormed-capitol-hill/story?id=75110558







rfenst Online
#50 Posted:
Joined: 06-23-2007
Posts: 39,096
teedubbya wrote:
Trump lost in a landslide but claims the opposite falsely. That’s petty.

Read the articles of impeachment. It’s only 2-3 pages. Even Liz Cheney agreed.


Read it here:

https://www.cbsnews.com/news/trump-impeachment-article-incitement-insurrection/
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