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.

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

  1. #3 House Republican Liz Cheney disagrees with Turley:

    “The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack,” Cheney said. “Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”

    1. Cheney looks like and her mouth moves when she talks just like her father who is one of the most reviled, despised figures in all of politics. WTH were the Republicans thinking when they put her into leadership as the out front face and voice of the party? Just gross. Just repelling. Just another collossal mistake by the GOP.

      1. I think you meant to write:

        “WTH were the Republicans thinking when they put TRUMP into leadership as the out front face and voice of the party? Just gross. Just repelling. Just another collossal mistake by the GOP.”

        1. There is no future in the GOP for neo-cons.

          That Republican leadership has not figured that out is disturbing.

          Trumps election represented a significant permanent shift in US political alignments.

          While these shifts are not complete yet – they are ireversable.

          The GOP has become the party of the working class.
          Democrats have become the party of the elites.

          Democrats have become the party of endless war.

          Biden can not placate his left flank without losing an even greater share of the working class.

          Any republican with national ambitions is inevitably going to be some permuation of Trump – atleast on policy.

          It is not likely that Trump voters are returning to the democratic party – they are incredibly loyal to Trump and his policies.
          But they will sit out elections if Republican candidates do not continue to own the policies of Trump.

          Democrats can not get those voters back – not without losing the rest of their own base.

    2. Chenney is a neo-con

      Trump drove most neocons out of the party.

      You are really celebrating Dick Cheney’s daughters agreement with you on ANYTHING ?

      Regardless, you can have her. Neo-cons have no place in the GOP today.

      Democrats are the indesputed party of war mongers.

      Hopefully republicans are over that Bushite nonsense.

  2. Secession On A Silver Platter

    The Democrats want to impeach Trump, again. Their motivation is to sully him, dispirit his supporters, and prevent him from running for president in the future. If they succeed, it would be the most boneheaded political move in the last 100 years. (And that includes Watergate.)

    First there was four years of: “Get Trump — at whatever cost.” And now a second, phony (threatened) impeachment. So here’s the Democrat’s message to the some 74 million Trump voters: “Screw you!” “You’re ‘deplorable lizard brains.'” “You don’t have the capacity to choose the right candidate, so we’ll choose one for you. Pick a milquetoast, like Romney. Him, we might leave alone (maybe).”

    Such a message gives Red states precisely the excuse they need to secede. And it gives tens of millions of voters the fuel to demand secession.

    The bitter irony here is that the Left constantly complains about voter disenfranchisement and voter suppression. And, yet, that is what this (threatened) impeachment accomplishes, on a grand scale.

        1. Here’s Forbes Joe.

          Actually, if the Red states secede they’ll be in full competition with Mexico and other food producing countries and their benefits from being tax takers, not tax givers (most of them) will be gone.. But hey, knock yourself out. I know it’s just a sterile fantasy.

            1. I’ll bet when the Chinese Civil war started, the coastal areas which were KMT strongholds were probably 80% of the Chinese GNP.

              The communists, by contrast, had the support in the Chinese heartland, among the peasants.

              This part of the country was considered “poor” but in reality, as history showed, it was strong.

              This is a dynamic of capitalism. The import-export trading elites, their bankers, their newspapers, and their hired politicians betray the people, and the people stay poor or get poorer

              Eventually, the people rebel.

              The arrogance from the American comprador billionaires and their lickspittle apologists is amazing now. Pride cometh before the fall

              Saloth Sar

              PS while I’m at it, ask yourself how much of the GNP of Afghanistan Kabul produces. Prolly most of it. And yet the poor Talibans living in their caves have outlasted the US

              PPS ever heard of a “The Vietnam war?” Another instance of big city held by American muckety mucks and the “poor” part of the country out of reach. And lost. Get the idea yet?

              1. Well, you have a lot to look forward to then, and when done – if things go your way – Trump can use Twitter again..

                1. Of course things will go “our way” – those like you will assure it.

                  Biden will be incredibly lucky to do as well as Obama.
                  And after Trump no one will tolerate that long.

                  The entire reason that the left has been completely whigged out over the past 4 years is that
                  Trump’s small steps towards a freer market were very successful – and even minorities were benefitting.

                  It was necescary to destroy Trump or ring the death knell for the left.

                  What you failed to realize is that
                  Sometimes the gods punish you by giving you what you want.

                  You have a country with 75M mostly quietly angry people – they are not going away.
                  They are not kowtowing to you.

                  And now that you “control” government the biggest problem you face is NOT making more of them.
                  Something you are abysmally bad at.

                  You have Big Tech, you have the media, you have most of government.
                  But you do not have anyone’s trust. Not even your own.

                  You must placate both your left and right flanks without pissing the other off.
                  And you must bring prosperity concurrently.

                  Prosperity is not magic.

                  The data is pretty clear the rate of improvement of standard of living declines as the scale of government increase and/or freedom declines.

                  See if you can find your way out of that gordian not ?

                  We got economically slammed by Covid. Trump managed a strong recovery in late summer.
                  But we are getting hit again. Trump MIGHT be able to manage a weak recovery from the double dip.

                  It is completely antithetical to everything democrats stand for to get economics right.

                  Under Trump we blew something like 5T on stupid government Covid stimulus.
                  Biden is preparing to spend nearly 2T more.

                  Standard of living is not how much you spend. It is how much you buy.
                  And you can not buy what you do not produce.

                  You can give every american 50K – it will not change the fact that we can not buy what we do not produce.

                  Democrats have spent since before the election trying to stall the vaccine and deprive Trump of the victory that would bring.

                  So you won. But guess what ? You have substantially delayed any economic recovery.

                  And people are fed up – and you can not afford any more angry enemies.

                  Unemployment is exploding again. There is no magic fix to that. Money does not put people back to work.
                  If we do not produce, you can not consume.

                  We have had large numbers of bankruptcies – especially in small businesses – which are the natural enemy of leftist big government.
                  We also have a massive number of small and medium businesses that have survived by the skin of their teeth.

                  They need recovery FAST or they die.

                  I honestly hope Bide pulls off a miricle

                  But it is not happening. There are no economic miracles on the left – nowhere ever.

              2. High standard of living regions accross the world exist only because basic needs are produced with both abundance and cheaply elsewhere.

            2. Again – can you eat your iphone ?

              Are you going to get Natural Gas, Electricity, water from Mexico ?

              Please learn something about economics.

              As standard of living rises a far larger portion of spending is in luxuries.
              That remains true only so long as necescities are abundant and cheap.

              Again – can you eat your iphone ?

          1. If you think that Mexico will meet your needs – go for it.

            I hope you like really really expensive enchalada’s.

            China tried to bankrupt US food producers by raising tarrifs and going to south america.
            South america sold lots of Soy to China.

            And US farmers sold lots of soy to the people South america used to sell soy to.

            Major commodities accross the world are fairly balanced.
            So long as there is no significant surplus anywhere and no ability to produce one quickly – producers control the market.

            Regardless, if Blue states wish to separate – and even join with Mexico – go for it.

            BTW where is California going to get Power (or water) from ?

            This is a stupid game.

            All of us are worse off divided.
            But pretending that Blue states will manage better is lunacy.

            It is precisely because you have a higher standard of living that you are far more fragile.

            I would further note – this is not Red States VS Blue states.

            This is red america – which is about 95% of the country vs. Blue america.
            Masachusetts and Vermont are the only states that are more than 50% blue.


            Geography is not people. But it is resources.

            Do you think mostly blue New York will stay in Thral to NYC very long ?

            If you have a red/blue civil war – it is not going to be by state.

        2. Check out Maslow’s hierarchy of needs. This is a concept that came from psychology but it fits perfectly into economics.

          The most critical needs are at the bottom of the pyramid. If those are scarce – their prices can be near infinite.

          But we can not fullfill second order needs until we not only make first order needs abundant – but also cheap.

          500 years ago 97% of human effort went to food, shelter and cloths. Now it is a fraction of our effort.

          To fullfill ever higher order needs we MUST make lower order needs – those that are absolutely necescary cheap and abundant.

          “Life was filled with guns and war
          And everyone got trampled on the floor
          I wish we’d all been ready
          Children died, the days grew cold
          A piece of bread could buy a bag of gold”

          Those in read states can life on corn and steak while those in blue states eat their iphones.

      1. Where is your gasoline refined ? Where is your natural gas produced ? Where does your meat and vegatables come from ? Where does your water come from ?

        Please learn something about economics. It is ALWAYS true that the prices of critical necescities are low, while the price of luxuries is high.

        Red States produce what most of what we NEED. Blue states produce most of what we WANT.

        Which do you think you can live without longer – needs or wants ?

        How long do you think the tech economy will last without energy, food, and water ?

      2. Not this stupid federal check meme.

        The federal government pays the costs of welfare, social security, medicare and medicaid throughout the country.
        I beleive CA gets almost 1/3 of all welfare funds.

        Absolutely the portion of red state budgets that comes from the federal government is huge.
        But that is because red state budgets are tiny.

        Whether you like it or not – it is not red states going bankrupt – it is blue ones.

        One of the fights over Covid – was the lefts efforts to sneak in a bailout for spendthrift blue states.

        My guess is under Biden that will happen.

        It is not blue states subsidizing red, It is red states subsidizing blue.

        If you are so sure you are right on that – this is simple. Eliminate all federal transfers to the states.
        Let the states pick up these programs from their own taxes – if they choose.

        See how long it takes for the Blue states to go bankrupt.

    1. We are a long way from secession.

      But democrats get stupider by the day.

      In one breath they say “We want unity”, in the next “But you must prostrate yourselves first”

      I would observe one other thing about events at the capital.

      There is little doubt that Trump supporters STILL behaved better than those on the left.

      And yet democrats were TERRIFIED of them.

      When has the capital been shutdown against planned protests before ?

      We saw Congress, the capital police, the DC police do next to nothing about BLM and Antifa – maybe KowTow to them.

      But the mere threat of a “peaceful protest” from the right TERRIFIED them.

      As it should. The right, Trump supporters have not to this point gone much beyond legitimate expressions of anger.

      But keep pushing and they will.

      The left ranted “insurection” – Not Yet, but keep at it.

      There will be no civil war. Just a government takeover and a new constitutional convention.

  3. Don’t worry about setting a precedent. This only applies to Trump. Trump doesn’t have the same rights as other presidents and his supporters don’t have the same rights as other American citizens. This should be obvious by now. Dr. Shiva Ayyadurai found that votes for him were being counted as .666 (fateful number) of a vote while votes for his opponent were being counted as one plus. This is indicative of how Trump supporters are viewed by the left. We are less than. When Hillary called us “deplorables,” she was just stating the truth. Strange that she chose that one moment in her long career of lying to do so. The only precedent that matters is that you can steal an election with impunity; therefore, there will never be another inhabitant of the White House who has not been chosen for us and therefore, there will never be another impeachment unless the puppet du jour steps out of line. Just relax and take the vaccine. This won’t hurt a bit.


    “Biden pick to head DOJ Civil Rights Division wrote Blacks had ‘superior physical and mental abilities'”

    “Shocking statements by Biden pick to lead DOJ Civil Rights Division”

    “Joe Biden’s pick to run the Justice Department’s enormously powerful Civil Rights Division is a woman called Kristen Clarke. Clarke says her job is simple: End hate. But like so many in her world, Clarke is actually an enthusiastic purveyor of what she claims to fight. In 1994, Clarke wrote a letter to The Harvard Crimson in her capacity as the president of the Black Students Association to explain her views on race science.

    “Please use the following theories and observations to assist you in your search for truth regarding the genetic differences between Blacks and whites [sic],” Clarke wrote.

    – “One: Dr Richard King reveals that the core of the human brain is the ‘locus coeruleus,’ which is a structure that is Black, because it contains large amounts of neuro-melanin, which is essential for its operation.
    Biden announces key nominees for DOJ including Kristen ClarkeVideo

    – “Two: Black infants sit, crawl and walk sooner than whites [sic].

    – “Three: Carol Barnes notes that human mental processes are controlled by melanin — that same chemical which gives Blacks their superior physical and mental abilities.

    – “Four: Some scientists have revealed that most whites [sic] are unable to produce melanin because their pineal glands are often calcified or non-functioning. Pineal calcification rates with Africans are five to 15 percent [sic], Asians 15 to 25 percent [sic] and Europeans 60 to 80 percent [sic]. This is the chemical basis for the cultural differences between blacks and whites [sic].

    – “Five: Melanin endows Blacks with greater mental, physical and spiritual abilities — something which cannot be measured based on Eurocentric standards.”

    – Tucker Carlson

    1. If Biden is trying to create more racial conflict, Clarke is a good choice.

      Racial superiority based on biology — sounds vaguely familiar.

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