Josh Blackman and Seth Tillman belatedly acknowledge the longstanding case law of the Supreme Court on the freedom of speech of government employees in their recent post on impeachment and first amendment. As pointed out by numerous critics of their previous offices (e.g. Jonathan Adler, Andrew Koppelman, and I), the first change does not protect government executives from being removed from their positions in political decision-making. In fact, such officials are regularly fired for their speech – including by Donald Trump himself!
To their credit, Blackman and Tillman acknowledge this and do not claim that senior government officials have a general constitutional right not to be removed for their speech. However, they claim that the presidents differ from the appointed officials because they report to the president, while the president himself has no superiors other than the voters during an election year:
Senior appointed policy-making officers may be removed from office by the President. If they lose the president’s confidence for whatever reason, even for an otherwise lawful speech, he can remove them. Without constitutional protection of the term of office of Congress, these positions are at will.
The president’s relationship with his subordinate officers is superior to any superior. The president is elected; The senior officers are appointed. The President can appoint his officers. He can guide them. In general, he can remove them at will.
In contrast, the president is not a cabinet member who works for a superior – except for the people who act through elections. The President is also not a GS-15 who can be disciplined when speaking at a political rally. Treating the president as an appointed officer or official would affect the president’s ability to behave like a politician and party leader.
Blackmand Tillman goes on to argue that Congress is not the “superior” of the president and therefore does not have the power to remove presidents for their speech, allowing the president to remove his own high-ranking executive subordinates.
The problem with Blackman-Tillman theory is that it overlooks the reality that one branch of government can remove members of another even if they are not the latter’s superiors. The point of impeachment is to give Congress the power to remove legislative and judicial officials who abuse their powers, commit crimes, or otherwise pose a threat to the political system. Congress may also prevent such officials from assuming office if so desired.
While, as Blackman and Tillman note, “the people” are the chief superiors of the president, they cannot remove the president between elections even if he seriously abuses his power, nor can they sanction him for crimes and abuses that do during the elections were committed “Lame Duck” period after an election (as in the case of Trump). The impeachment is intended to close this gap in the constitutional structure. To paraphrase Blackman and Tillman, Congress is in fact the superior of the President to remove him and expel him from future office in response to certain types of illegal or abusive activity on his part. This is entirely in line with the fact that you are not his boss in various other ways. In a complex control system such as that set out in the Constitution, it is often the case that one branch of government can restrict another on some matters but not others.
As I emphasized in my first contribution to this exchange, the exemption of the President from impeachment for speech acts which are protected from criminal and civil sanctions under the First Amendment would have absurd and dangerous consequences. Nothing in the text, in the original meaning, or in the history of the provisions of the Constitution governing impeachment, provides for such an exemption from impeachment.
The Blackman-Tillman approach would also have the dubious consequence that Congress could indict subordinate officials for various types of speech, but would prevent them from indicting the president for engaging in the exact same conduct. This is despite the fact that the impeachment standard is actually the same for both of them: they can all be prosecuted, removed, and disqualified from office for committing “serious crimes and misdemeanors”.
The argument that impeachment for speech would create a dangerous, slippery slope that prevents the president from acting as a politician and party leader is what I have preemptively addressed here:
[S]Fears of impeachment are out of place. If anything, there is much more reason to fear that presidents who deserve to be removed will get away with serious abuses of power.
The main reason we don’t have to worry too much about frivolous impeachment and removal is because removal requires a two-thirds majority in the Senate as well as a majority in the House of Representatives to bring charges. The former is almost always impossible to achieve unless many senators from the president’s own party vote to condemn him.
Ultimately, the real danger is not that too many good presidents will be unjustifiably removed from power, but that too many serious abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The super-majority requirement, which prevents frivolous impeachment proceedings, also prevents it in all too many cases where it is duly justified. But the threat of impeachment for abuse of power can, at least marginally, help.
Finally, Blackman and Tillman reiterate the precedent set by some Senators who set the First Amendment in defense of President Andrew Johnson during his impeachment trial in 1868. I am pleased to be basing myself on the points I made in my previous post in this exchange against this argument. For those interested, this piece also includes links to previous contributions to our debate, as well as comments from others.