“The first change does not apply in impeachment proceedings.” If there is a single line that sums up the feeling of impunity in Trump’s second impeachment, it is this line from a letter from law professors denying the former president any basis to challenge his impeachment on the grounds of freedom of speech. The scholars call such arguments “legally frivolous,” but only after misrepresenting the argument and frankly using circular logic. While I agree with aspects of the letter, I believe the thrust of the letter misses the point of those of us who have raised concerns about freedom of speech.
Scholars begin by stating the obvious: There is no “defense” of the First Amendment prohibiting the impeachment or conviction of a president. Since it does not even require a major crime and misdemeanor to be an actual crime, few argue that the use of language as a basis for impeachment is categorically prohibited under the First Amendment. Scholars go to great lengths to challenge an undisputed argument that “the power of Congress to prosecute is not limited to illegal activities.” However, this is not the argument many of us have made about the implications of this poorly worded impeachment article.
Constitutional rights and values are always relevant to impeachment. While many are joining the impeachment school, these senators have not taken an oath to behave like politicians, but rather actors in a constitutional process under an explicit yardstick for conviction. You are performing a constitutional act, not just a political act. As such, they must weigh the severity of the behavior and the future impact of a belief. Ironically, some of these scholars have emphasized that this is a purely political process, with senators being free to determine what they consider the basis of a belief. Trump’s objections to constitutional and regulatory concerns, however, are largely dismissed as frivolous, “bad faith” or irrelevant to that decision.
For impeachments, it is common for the House and Senate to evaluate charges relating to criminal and constitutional cases. While they do not control, they often weigh heavily in reviewing impeachment proceedings. However, these scholars insist that “the first amendment is not applicable in impeachment proceedings and therefore cannot defend President Trump”. This can technically apply in the sense of an actual defense in order to forbid or forbid the impeachment in court. It is not true in terms of free speech about the effects of a belief in political speech in America. The senators have to weigh up whether Trump’s language on January 6th is an actual incitement to insurrection. Using incitement as a basis for impeachment necessarily increases the definition of incitement. That raises cases like Brandenburg v Ohio, which are ultimately First Amendment cases. Understanding how such language is viewed by the courts is important in considering whether it should be treated as a constitutional violation for the purpose of impeachment. Just as courts weigh the value of prosecution against its impact on freedom of expression, the Senate can strike the same balance in impeachment proceedings.
This is not a new problem. We often discuss analogous constitutional and criminal cases in impeachment. That was the case when I testified in both the Clinton and Trump impeachments. In Trump’s impeachment, I spoke out against the much-discussed impeachment articles on bribery, extortion, campaign funding, and obstruction of justice. My testimony focused mainly on the legal and constitutional flaws in the enforcement of these crimes, which were portrayed as both criminal and criminal. However, I said that if the committee took the time to prepare minutes in support of such charges, the committee could rightly bring charges of obstruction of Congress and abuse of power. Ultimately, the House indicted these two articles but did not wait for an adequate record to be made. These arguments related to criminal codes and cases as the persuasive, non-controlling authority that is common in impeachment.
The suggestion that the first change has no relevance or applicability to impeachment is appalling. In recent years, many scholars have tried to justify censorship on the Internet with an analogue argument. They argue that private companies like Twitter are not subject to the first government-only change. It’s another obvious, but largely irrelevant, argument. Those of us who have denounced increasing censorship on social media do so as denying freedom of speech. The first change is not synonymous with more general values of freedom of speech.
The question for the senators is whether they should be concerned that the president’s speech is not being viewed as actual incitement as a criminal matter in federal court. The answer is that of course they should. This is particularly worrying when critics of the President, including members of that Senate “jury”, have engaged in similar overheated and reckless political rhetoric. The authors saw the impeachment as reserved for cases of constitutional clarity. This clarity is achieved by comparing it with the behavior of others – both as a criminal matter and as a protected matter.
As a secondary argument, the scholars insist that “the first change … does not allow the President the freedom to engage in a willful breach of duty.” The statement is again conclusive and largely irrelevant. Trump is accused of trying to instigate an actual uprising or rebellion, not just “willful breach of duty”. The status and intent of his words are the crux of the matter. In addition, the argument is circular. It is argued that this is not protected language because it is incitement. However, if it isn’t incitement, then it is protected language. Cases like Brandenburg v Ohio are used to determine whether language is criminal incitement or protected language. Such speech can be protected to protect freedom of speech in society, especially in political settings.
In particular, when the scholars finally determine whether Trump’s words were incitement, they admit that they are divided on the issue. They noted that “many of us believe that there is a hard-hitting case, even under the narrow standards of the Supreme Court, when language that incites violence is not constitutionally protected”. So some believe that there is a “mighty fall” and some don’t. Both sides can come to such conclusions fairly (not “frivolously”).
So some of these scholars (like some senators) believe that Trump’s speech could indeed be protected under Brandenburg. However, if so, the president may be retroactively removed from office in order to obtain language that will be considered protected speech in federal court. That is not determinative of the question, but it is obviously relevant to weighing the guilt for using these words.
As a criminal defense attorney, I am very skeptical that prosecutors could bring such a charge, but I accept that it is a matter of bona fide disagreement. I think it would ultimately collapse, if not in the process as in the appeal process. While calling on citizens to “fight” for their country and using aggressive rhetoric, Trump also told them to protest, “peacefully and patriotically making their voices heard”. He also says the reason for the march is “we will cheer on our brave senators and congressmen”. This may explain why, in the case of a crime that experts described as clear and obvious over a month ago, the prosecution did not conduct an interview, let alone bring an indictment. If the case is as clear and “powerful” as these experts claim, blame it. However, I suspect that if Trump could get his way in federal courts, many will be looking to scrutinize such allegations – an act that is seen as a justification not only for this case but also for the impeachment itself.
Ultimately, however, the main argument is not just a right to first change, but a right to freedom of expression. In assessing the culpability of a president’s speech, the Senate must consider how that impeachment will affect the presidents’ freedom of speech when declaring that such speech constitutes a constitutional violation of their duties. This means that freedom of speech is relevant, as is previous political speeches that are considered essential to our democratic system under the First Amendment. The Senate should consider how this insurrection was an attack on democracy. But it should also take into account the impact of sanctioning political speech on the same democratic system.
Efforts to address such freedom of speech concerns avoid the need to draw lines of comparison or address the inherent subjectivity of such a standard. For example, various Democrats, from spokeswoman Nancy Pelosi to Senate majority leader Chuck Schumer, have been criticized for threatening and irresponsible rhetoric. In fact, just two days before the trial, Missouri Rep. Cori Bush was criticized for believing she was justifying the forcible takeover of a St. Louis prison by tweeting the words of Martin Luther King: “A riot is this Language of the unheard. “I believe such statements are protected not only by the First Amendment, but also by freedom of expression. I would take that position if efforts were made to sanction or expel Bush in Congress. If the Senate on a legal or moral basis If he wants to vote for clarity, he must take Trump’s comments into account in this overall context of freedom of speech.
These are difficult questions and lines to draw. However, the resolution will not be to declare that the values of free speech (or the narrower First Amendment) have no place in the trial of former President Donald Trump.
A shorter version of this column appeared on Fox.com