This isn’t going to work for Donald Trump
Trump is relying on 1st Amendment “free speech” as a defense. Free speech is not a defense for inciting insurrection. Free speech is bounded by individual responsibility. And all of the speakers at that “rally” are also responsible, culpable. The co-conspirators should not be able to be jurors on Trump’s impeachment. Insurrection is a denial of the US Constitution. Wanting to overthrow the election process is insurrection and attempted government overthrow.
The problem with this defense is that the US Constitution gives the President’s responsibility, and limits the President to certain functions. Mounting an insurrection is an attempt to replace the US government with a dictatorship in violation of the US election, against the will of the voters. Such planning, such execution as speaking at the rally, directing a mob to go to the Capitol Building and delay or stop the counting of electoral votes is against the US Constitution.
The Constitution does not say that an officeholder is responsible for only 90% of their time in office. There are no time limits on the responsibility for a public office. This is why the defense fails. The defense envisions a free pass to a certain amount of time in an officeholder’s term but the defense won’t be able to identify how much of that time would be the “free pass” to impeachment proceedings.
The President is responsible for maintaining law and order and government processes throughout their term. Planning a “rally” and sending a mob to the Capitol Building to impede the counting of electoral votes is insurrection. Lives were lost in the attempt and more lives were threatened in this attempt. Trump should be impeached, convicted and barred from office for the rest of his life.
