I'm Brian Lerer. This is my daily politics podcast from WNYC Studios. It's Monday, February 8th.

Here comes the second impeachment trial of Donald Trump, this time for incitement to insurrection, and this time,

without Trump's own commentary on Twitter, since they banned him as a risk to, to what, incite

people again? So let's talk about how those two things intersect as we preview the trial,

but also explore the social media context around it with Emily

Bazelan, Yale Law School professor, New York Times Magazine staff writer, author of the best-selling

book, Charged, about prosecutor reform, and a member of the Slate Political Gap Fest trio.

Maybe you saw Emily's Times magazine article last week called

Why is Big Tech policing speech because the government isn't. Hi, Emily, always good to have you.

Welcome back to WNYC. Thank you, Brian. Can I ask you to start with your legal analyst hat on and tell us

if this was a court of law and I realize, and I think most of our

listeners realize impeachment is different. It's a political process, not a strictly legal one.

But if this was a court of law, what would be required to prove incitement?

Yeah, that's a great question. The answer is that if this were a criminal trial, the prosecutors would have to show that there was an imminent threat of lawful, unlawful action, and that President Trump had specific intent to cause that imminent unlawful action.

So in other words, you'd have to show that he meant to propel everybody

into the Capitol and had the intent of disrupting the electoral vote count and of the violence.

The Democrats frequently cite Trump's words at the rally, then immediately preceded the riot where he was getting them

ready to march to the Capitol and said things like fight like hell and be strong. But as you know,

Emily, politicians use those words all the time. And he said march peacefully. The Republicans,

you know, cite that line and played that clip consistently.

So how would terms like fight like hell have to be used to prove that he intended for them to

commit acts of violence? Well, if we were in a regular court, the prosecutors would say,

...