Bill Clinton, ‘I did not have sexual relations with that woman, Miss Lewinsky.’
NBC News, 26 January 1998

Perjury: the offence of wilfully telling an untruth or making a misrepresentation under oath. (Oxford Dictionary, my italics)

On the 26^th of January 1998, President Bill Clinton famously went on national American television and denied the content of an independent report stating that he had had an affair with a White House intern, Monica Lewinsky and, particularly, that she had on occasion fellated him. His exact words, now famous, were, ‘I did not have sexual relations with that woman, Miss Lewinsky.’ His statement however was not accepted by the media nor by his political opponents and following an appearance in front of a grand jury (during the Paula Jones sexual harassment case) in August 1998 in which he repeated his statement, Clinton finally admitted to ‘inappropriate intimate contact’ with Monica Lewinsky. This, and other alleged misdemeanours, became the basis for his impeachment trial in January 1999 on two articles of impeachment: perjury (in his statement while under oath to the grand jury in August) and that he ‘prevented, obstructed and impeded the administration of justice.’ On 12^th February 1999, Bill Clinton was acquitted of both charges. How did he do it? In respect of the perjury accusation, he played the word game.

During the earlier case brought to trial in August by state employee, Paula Jones, in which Jones accused Clinton of sexual harassment in a hotel in Little Rock, Bill Clinton, under oath, repeated his claim about not having sexual relations with Monica Lewinsky. The lawyers acting for Paula Jones had prepared a what they thought was a precise definition of sexual relations. It went like this:

For the purposes of this definition, a person engages in “sexual relations” when the person knowingly engages in or causes contact with the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to gratify or arouse the sexual desire of any person… “Contact” means intentional touching, either directly or through clothing.

Clinton’s lawyers argued that this definition did not cover both participants. It was Monica Lewinsky who had engaged in the relation. She was the active partner; Clinton was the passive recipient. He did not touch her in any of the body areas listed in the definition. She touched him. On that basis, the impeachment judges found Clinton not guilty on the charge of perjury and he was acquitted.

Basically, Clinton won on the basis of an incomplete definition in which he was able to find a loophole. The question now is, will Donald Trump’s lawyers find similar loopholes when the Senate discusses his article of impeachment which states … Donald John Trump engaged in high Crimes and Misdemeanours by inciting violence against the Government of the United States in that:… and then goes on to cite the reasons being the repeated allegations of election fraud and thus non-acceptance of the result by the American people in the period between the November 2020 election results and the speech he made on 6^th January 2021 in the Ellipse park immediately south of the White House. Trump’s speech was followed by the assault on the Capitol building while Congress was ratifying the results of the Electoral College that would pass the presidential baton to Joe Biden. The article of impeachment also makes reference to the 2^nd January 2021 phone call between Donald Trump and Brad Raffensperger during which President Trump urged the secretary of state Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so (the notorious ‘find me another 11,780 votes, Brad’ phone call).

It’s the 6^th January speech I want to concentrate on – did Trump’s words incite violence against the Government of the United States?

Donald Trump’s ‘Save America’ speech, Elipse park, Washington D.C., 6^th January 2021

First, let’s look at the definition of incite. Here are five taken from popular online dictionaries:

[1] To move to action : stir up : spur on : urge on (Merriam-Webster)
[2] Encourage or stir up (violent or unlawful behaviour) (Oxford Languages)
[3] To encourage someone to do or feel something unpleasant or violent (Cambridge)
[4] To encourage people to be violent or commit crimes by making them angry or excited (Macmillan)
[5] To instigate, persuade, or move another to commit a crime (Legal definition in The Free Dictionary)

Already we can see a problem. Three out of five definitions, [2, 3, 4], necessarily includes the word violence whereas two, [1,5], do not. Did Trump incite violence intrinsically or did he just incite, the violence coming from another source? If the content of his speech can be shown to not be inciting violence, then he’s off the hook. He just incited and that is his right under the Freedom of Speech clause in the First Amendment of the Constitution of the United States.

Let’s move on and take a look at the speech Trump gave. The transcript is available (Bibliography item 6 below) and I worked my way through all 11,136 words (his speech lasted 71 minutes) looking for words, phrases and sentences that could be said to incite violence.

Here is what I found when I read the transcript of the speech. It can be structured into three main sections.

Section 1 (~32 minutes). A fire-and-brimstone attack on anything that Trump didn’t agree with or anybody who didn’t agree with him: the media, fake news, Big Tech companies (‘… they rigged an election.’), stolen election (‘Stop the steal. We didn’t lose.’), Democrats (disparaged every which way), fraudulent vote counting and mail-in ballots, cancel culture (meaning ostracism by social media, primarily), the Covid-19 pandemic (cited as a way of defrauding people!), weak/pathetic Republicans, the ‘China’ virus, and the Supreme Court. He also made derogatory remarks about Hillary Clinton, Michelle and Barack Obama, Hunter Biden, Republican Senator Mitt Romney, Bill Barr (former US Attorney General who resigned his position in December 2020), and others too numerous to mention and, in addition, exhorted Vice-President Mike Pence several times to ‘Do the right thing’ during the Electoral College ratification process taking place 2 miles away in the Capitol. But Trump had praise for what he and his administration had achieved during his four years of office touching on the strengthening of the economy, rebuilding of the military, tax cuts, creation of the Space Force, improved treatment of war veterans, and better medical care. Plus, he praised Rudy Giuliani (ex-mayor of New York City and currently Trump’s lawyer), staunch Republicans such as Senators Ted Cruz (Texas) and Ron Johnson (Wisconsin), and ex-senators Kelly Loeffler and David Purdue (the two senators ousted in the 6^th January 2021 runoff in Georgia, arguably because of Trump’s rally in Dalton, Ga, two days before the runoff).

Section 2 (~27 minutes). Earlier, Trump had stated ‘We amassed overwhelming evidence about a fake election.’ The second section of his speech is where he presents this ‘overwhelming evidence’, state by state, of how he believed he was robbed of votes and how Biden accumulated votes fraudulently. I read this section carefully looking for incitement but found none and if Trump was quoting all these figures without a script or autocue, it was an impressive performance and feat of memory. I assume the ‘facts’ he presented were the ‘facts’ presented by Trump’s lawyers in the many court cases between 20^th November 2020 and 6^th January 2021. If so, they have all been rejected as evidence of fraud but Trump doesn’t say this. He simply accuses all the courts and administrators of misbehaviour.

Section 3 (~12 minutes). Closing remarks during which Trump said how he would improve the voting process, drain the (Washington D.C.) swamp, continue with the Wall (surprisingly not mentioned in the first part of his speech), make America great, and, one last time, stop the steal.

So, what did he say that could be construed as inciting violence against the Government of the United States? He made use of emotive and military words such as fight (21 instances), patriot (4 instances), march (2 instances), and warriors, siege, slaughter, defend (1 instance each). The word fight figured prominently, even in chants from the crowd (‘Fight for Trump. Fight for Trump.’) but the word has such a broad spectrum of meaning ranging from the mild make a strenuous effort to the strong physical conflict that I think it would be a fruitless exercise to cite the twenty-one times Trump used it to verify incite to violence. Note also that in the speech there is no use of the word debate or discuss or any other word meaning let’s sit down and reach an agreement. Trump’s whole speech is centred on head-on attack.

How about his battle cries? Here’s what I found that could arguably be used to prove incitement to violence:

‘These people are not going to take it any longer.’ (It in that sentence was not defined.)

‘We will never give up. We will never concede, it doesn’t happen.’ Similar rhetoric to Churchill’s 1940 speech ‘… we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender, …’ Could Trump’s adaptation of this clipped rhetorical style be construed as a call to arms and action?

‘Our country has had enough.’ Another call to arms and action?

‘After this, we are going to walk down there and I’ll be with you… to cheer our brave senators and congressmen and women.’ The ‘I’ll be with you’ was metaphorical. Trump never marched with the crowd to the Capitol after his speech.

‘And we fight. We fight like hell and if you don’t fight like hell, you’re not going to have a country anymore.’ This is the only statement included in the article of impeachment, presumably as an example of a statement that incites violence. But with what definition of the verb to fight? Mild or strong?

And at the end of his speech, he said, ‘So let’s walk down Pennsylvania Avenue. I want to thank you all. God bless you and God bless America. Thank you all for being here, this is incredible. Thank you very much. Thank you.’ Note: walk, not march and no call to arms. In fact, a very temperate ending to a demagogic speech.

So, what do you think? Do any of these statements incite violence? Do any explicitly say let’s take back our government; let’s take up arms; let’s eject the wrongdoers; let us take back, by force, that to which we are entitled? Clearly Trump was whipping up the crowd and he made use of military terms when non-aggressive words were available. He also made a strong case for election fraud in his barrage of facts, figures and accusations in the middle part of his speech without stating that none of his sixty lawsuits had been proven within the courts of law where they had been presented. The crowd must have loved hearing all this.

Towards the end, Trump went back to his war cries but not as aggressively as at the start of his speech. So, did he incite the crowd to insurrection? – a crowd composed of long-term Trump supporters, far-right militants, QAnon activists, Republican Party officials, white supremacists, and political donors. On balance, I think not. His presentation was in his usual bombastic statement-without-proof style and I think he misjudged the mood and diversity of the crowd. Trump doesn’t know how to make a conciliarity speech, nor is he able to offer any words of support to those he perceives as ‘the enemy’. He attacks, always, using words of aggression like fight, march, siege, warrior, slaughter and defend and, as far as he’s concerned, he probably thought that he had made an excellent speech, justifying his claim that the election had been stolen from him and building on his demi-god status. (Another crowd chant was ‘We love Trump. We love Trump.’) In reality, the crowd responded as if his speech was a call to arms and the rest is history. I don’t think that Trump had thought through the possible effects and consequences of his speech in front of a raucous blood-thirsty group and that was a serious miscalculation and a weakness on his part, but it’s not a crime. Thus, I believe he should not be impeached for inciting an insurrection. Next month, the senators may think different after they have listened to the arguments of the House of Representatives’ prosecutors and the defence offered by Trump’s legal team, assuming Trump manages to find lawyers willing to represent him (see Bibliography item 13).

In a way, it’s all academic. There are doubts that Trump can be brought to trial in the Senate now that he is no longer the President. There is no precedence for an ex-President of the United States to be impeached. Impeachment, by definition, is an action brought against a public official while that official is in office (my italics). In addition, most forecasters of political events are saying that, even if the trial proceeds next February, it is extremely unlikely that the necessary two/thirds of the senators will vote for the impeachment. The Senate, made up of one hundred senators, is currently composed of fifty Republicans and fifty Democrats. Assuming all the Democrats vote yes, it will take another seventeen Republicans to add to the yes vote if the impeachment is to succeed and that looks highly unlikely.

It will be interesting to see if Trump’s lawyers can play the word game and successfully argue that Trump personally did not incite violence even though violence occurred after his speech. Clinton played the word game, and won. I wonder if Trump will also win?

Bibliography

1. https://time.com/5120561/bill-clinton-monica-lewinsky-timeline/
2. https://en.wikipedia.org/wiki/Clinton%E2%80%93Lewinsky_scandal
3. http://www.languageandlaw.org/PERJURY.HTM
4. https://en.wikipedia.org/wiki/Paula_Jones
5. https://en.wikipedia.org/wiki/Second_impeachment_of_Donald_Trump
6. https://www.rev.com/blog/transcripts/donald-trump-speech-save-america-rally-transcript-january-6
7. https://edition.cnn.com/2021/01/11/politics/house-articles-of-impeachment/index.html
8. https://www.theguardian.com/us-news/live/2021/jan/04/donald-trump-georgia-votes-joe-biden-brad-raffensperger-senate-covid-coronavirus-us-politics-live
9. https://www.washingtonpost.com/politics/trump-raffensperger-call-transcript-georgia-vote/2021/01/03/2768e0cc-4ddd-11eb-83e3-322644d82356_story.html
10. https://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
11. https://www.nytimes.com/2020/12/26/us/politics/republicans-voter-fraud.html
12. https://www.opb.org/article/2021/01/11/capitol-breach-mob-records-who-was-there/
13. https://edition.cnn.com/2021/01/25/politics/impeachment-trump-lawyer-legal-team/index.html

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