How A Snap Impeachment Could Shatter Our Constitutional Balance

Below is my column in the Hill newspaper on my concerns over the planned “snap impeachment” this year.  In my view, impeaching on the speech alone would raise serious concerns over the use of impeachment in the future. Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration.  Many of the same members have used the same type of rhetoric to “take back the country” and “fight for the country.”  The concern is that this impeachment will not only create precedent for an expedited pathway of “snap impeachments” but allow future Congresses to impeach presidents for actions of their supporters.  The point of this column is to call for greater caution and deliberation before we take this step to consider the basis and implications of this impeachment.  As with the calls to use the 25th Amendment, there are real dangers to any opportunistic or hurried use of this option.  There is also the alternative of a joint and bipartisan condemnation of both houses, which would be both justified and unassailable.

As I have said, there could be evidence to support impeachment on the proposed incitement article but it would have to be found before or after the speech to show an intent to spark rioting or to allow it to continue.  As with the 25th Amendment claim, such evidence would be found from within the White House and through a traditional impeachment inquiry.

Here is the column:

Author Franz Kafka once wrote, “My guiding principle is this: Guilt is never to be doubted.” Congressional Democrats appear close to adopting that Kafkaesque standard into the Constitution as they prepare for a second impeachment of President Trump. In seeking his removal for “incitement,” Democrats would gut not only the impeachment standard but free speech, all in a mad rush to remove Trump just days before the end of his term.

Democrats are seeking to remove Trump on the basis of his speech to supporters before the Jan. 6 rioting at the U.S. Capitol. Like many, I condemned that speech as it was still being given, calling it reckless and wrong. I also opposed the challenges to electoral votes in Congress. However, Trump’s speech does not meet the definition of incitement under the U.S. criminal code. Indeed, it would be considered protected speech by the Supreme Court.

When I testified in both the Clinton and Trump impeachment hearings, I noted that an article of impeachment does not have to be based on a clear crime but that Congress historically has looked to the criminal code to weigh impeachment offenses. In this current controversy, any such comparison would quickly dispel claims of criminal incitement. Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers “to peacefully and patriotically make your voices heard.”

Such electoral-vote challenges have been made by Democrats in past elections under the Electoral Count Act, and Trump was pressing Republican lawmakers to join the effort on his behalf. He stated: “Now it is up to Congress to confront this egregious assault on our democracy…And after this, we’re going to walk down – and I’ll be there with you – we’re going to walk down … to the Capitol and we’re going to cheer on our brave senators and congressmen and women.”

He ended his speech by saying a protest at the Capitol was meant to “try and give our Republicans, the weak ones … the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.” Such marches are common — on both federal and state capitols — to protest or to support actions occurring inside.

The governing legal standard for violent speech is found in Brandenburg v. Ohio. As a free speech advocate, I have long criticized that 1969 case and what I consider its dangerously vague standard. However, even Brandenburg would treat Trump’s speech as protected by the First Amendment. Under that case, the government can criminalize speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

There was no call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent; the vast majority of the tens of thousands of protesters present were not violent before the march, and most did not riot inside the Capitol. Like many violent protests we have witnessed over the last four years, including Trump’s 2017 inauguration, the criminal conduct was carried out by a smaller group of instigators. Capitol police knew of the planned march but declined an offer of National Guard personnel because they did not view violence as likely.

Thus, Congress is about to seek the impeachment of a president for a speech that is protected under the First Amendment. It would create precedent for the impeachment of any president who can be blamed for the violent acts of others after the use of reckless or inflammatory language.

What is even more unnerving are the few cases that would support this type of action. The most obvious is the 1918 prosecution of socialist Eugene Debs, who spoke passionately against the draft in World War I and led figures like President Wilson to declare him a “traitor to his country.” Debs was arrested and charged with sedition, the new favorite term of today’s Democratic leaders to denounce Trump and Republican members who challenged the Biden victory.

In 1919, Justice Oliver Wendell Holmes wrote for a unanimous bench in one of the most infamous decisions to issue from the Supreme Court. The court dismissed Debs’ free speech rights and held that it was sufficient that his words had the “natural tendency and reasonably probable effect” of deterring people from supporting the war.

That decision was a disgrace — but Democrats are now arguing something even more extreme as the basis for impeachment. Under their theory, any president could be removed for rhetoric deemed to have the “natural tendency” to encourage others to act in a riotous fashion. Even a call for supporters to protest peacefully would not be a defense. It would be as if Debs first denounced the war but also encouraged people to enlist. This standard would allow for a type of vicarious impeachment — attributing conduct of third parties to a president for the purposes of removal.

Democrats are pushing this dangerously vague standard while objecting to their own statements being given incriminating meaning by critics. For example, conservatives have pointed to Rep. Maxine Waters (D-Calif.) calling for people to confront Republican  leaders in restaurants; Rep. Ayanna Pressley (D-Mass.) insisted during 2020’s violent protests that “there needs to be unrest in the streets,” while then-Sen. Kamala Harris (D-Calif.) said “protesters should not let up” even as many protests were turning violent. They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity.

The damage caused by this week’s rioting was enormous — but it will pale in comparison to the damage from a new precedent of a “snap impeachment” for speech protected under the First Amendment. It is the very danger that the Framers sought to avoid in crafting the impeachment standard. In a process meant to require deliberative, not impulsive, judgments, the very reference to a “snap impeachment” is a contradiction in constitutional terms. In this new system, guilt is not to be doubted and innocence is not to be deliberated. It would do to the Constitution what the rioters did to the Capitol: Leave it in tatters.

739 thoughts on “How A Snap Impeachment Could Shatter Our Constitutional Balance”

    1. Anonymous the Stupid and Mary Trump have one thing in common, diminished mental capacity and mental problems. I feel sorry for Mary Trump because her greed made her want something she didn’t get. The person that she thought should have given it to her is dead so she went after a family member. Anonymous the Stupid has similar problems and that is why he is prone to talking about Mary Trump. He too is desirous because he was denied an adequate brain so he likes to go after people that are his better.

  1. “Six hours of paralysis: Inside Trump’s failure to act after a mob stormed the Capitol”

    https://www.washingtonpost.com/politics/trump-mob-failure/2021/01/11/36a46e2e-542e-11eb-a817-e5e7f8a406d6_story.html

    Excerpt:

    Hiding from the rioters in a secret location away from the Capitol, House Minority Leader Kevin McCarthy (R-Calif.) appealed to Jared Kushner, President Trump’s son-in-law and senior adviser. Sen. Lindsey O. Graham (R-S.C.) phoned Ivanka Trump, the president’s daughter.

    And Kellyanne Conway, a longtime Trump confidante and former White House senior adviser, called an aide who she knew was standing at the president’s side.

    But as senators and House members trapped inside the U.S. Capitol on Wednesday begged for immediate help during the siege, they struggled to get through to the president, who — safely ensconced in the West Wing — was too busy watching fiery TV images of the crisis unfolding around them to act or even bother to hear their pleas.

    “He was hard to reach, and you know why? Because it was live TV,” said one close Trump adviser. “If it’s TiVo, he just hits pause and takes the calls. If it’s live TV, he watches it, and he was just watching it all unfold.”

    Even as he did so, Trump did not move to act. And the message from those around him — that he needed to call off the angry mob he had egged on just hours earlier, or lives could be lost — was one to which he was not initially receptive.

    “It took him awhile to appreciate the gravity of the situation,” Graham said in an interview. “The president saw these people as allies in his journey and sympathetic to the idea that the election was stolen.”

    Trump ultimately — and begrudgingly — urged his supporters to “go home in peace.” But the six hours between when the Capitol was breached shortly before 2 p.m. Wednesday afternoon and when it was finally declared secure around 8 p.m. that evening reveal a president paralyzed — more passive viewer than resolute leader, repeatedly failing to perform even the basic duties of his job.

    How a pro-Trump mob was able to breach security and storm the Capitol
    Capitol Police were unable to stop a breach of the Capitol. Washington Post reporter Carol Leonnig and a former Senate Sergeant at Arms describe the events. (The Washington Post)
    The man who vowed to be a president of law and order failed to enforce the law or restore order. The man who has always seen himself as the protector of uniformed police sat idly by as Capitol Police officers were outnumbered, outmaneuvered, trampled on — and in one case, killed. And the man who had long craved the power of the presidency abdicated many of the responsibilities of the commander in chief, even having to be prodded into belatedly calling up reinforcements from the National Guard.

    The episode in which Trump supporters rose up against their own government, leaving five people dead, will be central to any impeachment proceedings, critical to federal prosecutors considering incitement charges against him or his family, and a dark cornerstone of his presidential legacy. -Washington Post

    1. This is all from Washington Post – and like usually it is all fiction.

      You would think based on post stories that they had a spy cam in the whitehouse
      Except they just make it up.

      It is not leaking or spying if it is not actually true.

        1. The speculation is on the part of the post author. I merely pointed it out.

          We have another article from the left wing nut media that makes claims that it can not possibly know, or that at the very least it must produce credible evidence that it knows.

          Just because a reporter says something does not make it true.

      1. John, what I find amazing is that some stupid persons don’t learn from experience. Either that or they refuse to learn because their ideology encompasses their entire personality so outside of that ideology they are dead to the world.

        You have proven your points over and over again with surprisingly very few mistakes. You have proven the WP wrong over and over again as well. Anonymous the Stupid says otherwise because his memory doesn’t extend from one day to the next.

        Anonymous the Stupid says you run your mouth. No. You talk intelligently and I learn something from most of your posts. I thank you for that. Anonymous the Stupid learns nothing yet he runs his mouth continuously misrepresenting links that he posts, posting data from sources that are spinning the news to feed to dummies like him even though the stories have to be retracted.

        John, you are up front. Anonymous the Stupid is a coward. He tries to hide his stupidity among many anonymous posters but he can’t distance himself far enough from the type of stupid remarks he makes.

        Labelling this anonymous, Anonymous the Stupid, provides a smart name that quickly informs everyone what he is. To date I have yet to hear anyone say anything good about him nor has anyone been able to point to any significant original statement he has made.

        Using the term Anonymous the Stupid when referring to this anonymous is an easy way of others knowing which anonymous he is. Most of the times it is obvious. He is void of fact, or copying a link or another blogger’s words. At other times he is busy forgetting the facts provided earlier.

        Yes, I think Anonymous the Stupid is a perfect name for him. Maybe everyone else should use it as well.

        1. Sometimes I almost feel sorry for Allan/S. Meyer. Someone must have called him “stupid” when he was growing up.

    1. “Ryan Goodman
      @rgoodlaw

      Trump laid the groundwork long before January 6.

      We’ve created a highly detailed timeline of Trump’s year of building toward incitement of the assault on the U.S. Capitol.

      A resource tool and a damning indictment.

      Incitement Timeline: Year of Trump Actions Leading to Attack on Capitol

      A highly detailed chronology of the year leading up to the attack on the Capitol.

      justsecurity.org”

      https://twitter.com/rgoodlaw/status/1348640248226586625

      1. Given that there was no incitement – why is anyone to beleive anything else this guy says ?

        You still do not grasp – when you burn your credibility and integrity – no one will beleive you – even if you might be telling the truth.

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