On MSNBC’s Morning Joe broadcast on Tuesday, I was asked about whether Trump could be impeached for making false claims about the former president because the comments were made on Twitter. I laughed off the suggestion which I honestly viewed as made somewhat in jest: “There’s no penalty to the president for bad tweets,” I said. “[Twitter] postdated the [U.S. Constitution’s] impeachment clause. So, there’s no impeachment for bad tweets.”
I obviously did not mean that one cannot be impeached when committing an otherwise impeachable act through new technology. That would be facially ridiculous. Rather, I was stating (and entirely believe) that a president saying rude, defamatory, or untrue things in public about a predecessor is not an impeachable offense. While most presidents have generally maintained civil relations with their predecessors, such personal attacks are not unprecedented. Indeed, as I recently discussed, presidential attacks on the courts are not unprecedented.
Tribe however went to Twitter to not only disagree but affirmatively say that he thought these were potentially impeachable tweets.
1/On @JoeNBC@JonathanTurley says Trump’s false claim that 44 wiretapped him cdn’t be impeachable because #Twitter didn’t exist when the
2/Impeachment Cl. was written in 1787. What’s he mocking? Stupid versions of originalism? The gravity of T’s abuse of power? POTUS himself?
3/Using power of WH to falsely accuse predecessor of impeachable felony does qualify as an impeachable offense whether via tweet or not
To answer his question: yes, I was mocking. There is nothing in the Constitution that says “Thou Shalt Not Tweet” or anything unique about Twitter for the purposes of impeachment. There is no ban on tweeting like there is for emoluments. It is simply a form of communication. It is the content of communications and not the vehicle that concern constitutional analysis.
A more serious question is raised in the last tweet. How is insulting a former president or making a false allegation a misuse of power? A president does retain a modicum of free speech. There is no evidence of Tribe using the powers of his office other than conveying his views of an allegation that was published on a conservative website. Indeed, part of the complaint against Trump is that he failed to use his staff to confirm whether the allegation was indeed true.
A President can be removed from office only upon “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Constitution, Art. II, section 4. As Professor Tribe maintained during our respective testimony and writings in the Clinton Impeachment, “Our Constitutional structure reaffirms that the standard must be a very high one.”
Tribe and I have disagreed about the history and meaning of the impeachment standard, but this is one disagreement that I did not anticipate. Twitter and social media allows for citizens, including presidents, to vent their opinions and views. That is protected speech in my view absent a few narrow exceptions. Just as Trump could say these things in person, he can say these things in Tweets. There is nothing about Twitter that changes the foundational fact that this is an opinion. It may be erroneous or even non-presidential but it is an opinion.
I still hope that there will be an impeachment controversy where Professor Tribe and I will find common ground. However, it will not be over these “impeachable tweets.” Of course, the final tweet may not have been sent with much circumspection but of course that is the very point of this entire controversy.