“The First Amendment does not apply in impeachment proceedings.” If there is a single line that sums up the sense of legal impunity in the second Trump impeachment, it is that line from a letter sent by law professors to deny any basis for the former president to challenge his impeachment on free speech grounds. The scholars call any such arguments “legally frivolous” but only after misstating the argument and frankly employing a degree of circular logic. While I agree with aspects of the letter, I believe that the thrust of the letter misses the point of those of us who have raised free speech concerns.
The scholars start by stating the obvious: that there is no First Amendment “defense” that bars the impeachment or conviction a president. Since there is not even a requirement that a high crime and misdemeanor be an actual crime, few argue that there is a categorical bar on the use of speech for the basis of impeachment under the First Amendment. The scholars go to great length to contest an argument not in dispute in stating “Congress’s power to impeach is not limited to unlawful acts.” However, that is not the argument that has been raised by many of us about the implications of this poorly drafted article of impeachment.
Constitutional rights and values are always relevant to an impeachment. While many subscribe to the “anything goes” school of impeachment, these senators did not take an oath to act like politicians but actors in a constitutional process under an express standard for conviction. They are performing a constitutional, not just some political act. As such, they need to weigh the gravity of conduct and the implications of any conviction for the future. Ironically, some of these scholars have emphasized that this is a purely political process where senators have free range in determining what they consider to be a basis for conviction. Yet, Trump’s objections of constitutional and prudential concerns are being widely dismissed as frivolous, “bad faith,” or irrelevant to that decision.
It is common in impeachments for the House and the Senate to evaluate charges in reference to criminal and constitutional cases. While not controlling, they often weigh heavily in the review of articles of impeachment. Yet, these scholars insist that “The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump.” That may be technically true in the sense of an actual defense to enjoin or bar impeachment in court. It is not true in the sense of a free speech concern over the implications of a conviction of political speech in America. The senators must weigh if Trump’s language on Jan. 6th constitutes actual incitement to insurrection. The use of incitement as the basis for impeachment necessarily raises how incitement is defined. That raises cases like Brandenburg v. Ohio which are ultimately First Amendment cases. Understanding how such language would be viewed by the courts is relevant to weighing whether it should be treated as constitutional violation for the purposes of impeachment. Just as courts balance the value of criminal prosecution against the impact on free speech, the Senate can perform that same balancing in an impeachment trial.
This is not a new issue. We often discuss analogous constitutional and criminal cases in impeachments. That was the case when I testified in both the Clinton and Trump impeachments. In the Trump impeachment, I opposed the much discussed articles of impeachment on bribery, extortion, campaign finance and obstruction of justice. My testimony primarily focused on the legal and constitutional flaws in claiming those criminal acts, which were portrayed as both prosecutable and impeachable. However, I said that the Committee could legitimately impeach on claims of obstruction of Congress and abuse of power if they took the time to create a record to support such charges. Ultimately, the House did impeach on those two articles but did not wait to create a sufficient record. Those arguments referenced criminal codes and cases as persuasive, not controlling, authority which is common in impeachments.
Suggesting that the First Amendment has no relevance or applicability to an impeachment proceeding is chilling. In recent years, many academics have sought to justify censorship on the Internet with an analogous argument. They argue that private companies like Twitter are not subject to the First Amendment, which only applies to the government. It is another obvious but largely irrelevant argument. Those of us who have denounced the rising censorship on social media do so as a denial of free speech. The First Amendment is not synonymous with broader values of free speech.
The question for senators is whether they should be concerned that the President’s speech would not be considered actual incitement as a criminal matter in federal court. The answer is that, of course, they should. That is particularly a concern when critics of the President, including members of this Senate “jury” have engaged in similar over-heated and reckless political rhetoric. The Framers saw impeachment as reserved for cases of constitutional clarity. That clarity is achieved by comparison to conduct of others – both as criminal and protected matters.
As a secondary argument, the scholars insist that “The First Amendment … does not grant the president the freedom to engage in a willful dereliction of duty.” The statement is again conclusory and largely irrelevant. Trump is accused of seeking to incite an actual insurrection or rebellion, not just the “willful dereliction of duty.” The status and intent of his words are the crux of the matter. Moreover, the argument is circular. It is arguing that this is not protected speech because it is incitement. However, if it is not incitement, it is protected speech. Cases like Brandenburg v. Ohio are used to determine if speech is criminal incitement or protected speech. Such speech can be protected to preserve free speech in society, particularly in political settings.
Notably, when the scholars finally get to the whether Trump’s words constituted incitement, they admit that they are divided on the question. They noted that “many of us believe there is a powerful case that even under the Supreme Court’s narrow standards for when speech inciting violence is not constitutionally protected.” So some believe that there is a “powerful case” and some do not. Both sides can fairly (not “frivolously”) reach such conclusions.
Thus some of these scholars (like some senators) believe that Trump’s speech might indeed be protected under Brandenburg. However, if that is true, then the President might be retroactively removed from office for language that would be viewed as protected speech in federal court. That is not determinative on the question but it is obviously relevant in weighing the culpability of using these words.
As a criminal defense attorney, I am highly skeptical that prosecutors could sustain such a charge but I accept that this is a matter of good-faith disagreement. I believe it would ultimately collapse, if not at trial than on appeal. While Trump does call for citizens to “fight” for their country and used aggressive rhetoric, he also told them to protest “peacefully and patriotically make your voices heard.” He also says that the reason for the march is that “we are going to cheer on our brave senators and congressmen and women.” That may explain why, in a crime described over a month ago as clear and obvious by experts, has not resulted in an interview, let alone a charge, from prosecutors. If the case is so clear and “powerful” as these experts allege, charge him. However, I expect many are concerned with testing such claims when Trump could prevail in the federal courts – an act that would be viewed as a vindication for not just that case but the impeachment itself.
In the end, however, the primary argument is not just a first amendment claim but a free speech claim. In judging the culpability of a president’s speech, the Senate must consider how this impeachment impacts free speech for presidents in declaring such speech to be a constitutional violation of his duties. That means that free speech is relevant, as is prior political speech deemed protected under the First Amendment as essential to our democratic system. The Senate should consider how this riot was an attack on democracy. But it should also consider the impact of sanctioning political speech on that same democratic system.
The effort to dismiss such free speech concerns avoids the necessity of drawing lines of comparison or addressing the inherent subjectivity of such a standard. For example, various Democrats from Speaker Nancy Pelosi to Senate Majority Leader Chuck Schumer have been criticized for threatening and irresponsible rhetoric. Indeed, just two days before the trial, Recently, Missouri Rep. Cori Bush was criticized when some felt she was justifying the violent takeover of a prison in St. Louis by tweeting the words of Martin Luther King that “a riot is the language of the unheard.” I believe such statements are not only protected under the First Amendment but exercises of free speech. I would take that position if there was an effort to sanction or expel Bush in Congress. If the Senate wants to vote on a basis for legal or moral clarity, it must consider Trump’s comments in this overall context of free speech.
These are difficult questions and lines to draw. However, the resolution will not be found in declaring that free speech (or narrower First Amendment) values have no place in the trial of former President Donald Trump.
For shorter version of this column appeared on Fox.com