Below is my column in the Hill newspaper about my concerns about the proposed “quick impeachment” this year. In my view, indicting the speech alone would raise serious concerns about the future application of impeachment. Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected, and refused to do so amid riots broke out on 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 set a precedent for an accelerated route to “rash impeachment”, but will also give future Congresses the opportunity to indict presidents for the actions of their supporters. The point of this column is to call for greater caution and reflection before we take this step to examine the basis and implications of this impeachment. As with the prompts to use the 25th amendment, there is a real risk of opportunistic or rushed 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 said earlier, there could be evidence of the impeachment of the proposed instigating article, but it would have to be found before or after the speech to show any intention of causing rioting or allowing it to continue. As with the 25th Amendment claim, such evidence would be found from the White House and through a traditional impeachment investigation.
Here is the column:
Author Franz Kafka once wrote, “My motto is: Guilt is never in doubt.” Congress Democrats seem on the verge of incorporating this Kafkaesque standard into the constitution as they prepare for a second impeachment of President Trump. In seeking his dismissal for “incitement,” the Democrats would take advantage of not only impeachment standards but freedom of speech, all in a mad rush to remove Trump a few days before his term ends.
Democrats seek to remove Trump based on his speech to supporters ahead of the Jan. 6 riots in the U.S. Capitol. Like many, I condemned this speech as it was delivered and called it reckless and wrong. I have also spoken out against the challenge of voting in Congress. However, Trump’s speech does not meet the US Criminal Code definition of incitement. In fact, it would be considered a protected speech by the Supreme Court.
When I testified in both Clinton and Trump impeachment hearings, I found that impeachment need not be based on an outright crime, but that Congress has historically used the Penal Code to weigh impeachment offenses. In this current controversy, such a settlement would quickly dispel claims of criminal incitement. Despite widespread, legitimate condemnation of his words, Trump never called for violence or riot. Rather, he urged his followers to march on the Capitol to speak out against the confirmation of votes and to support the challenges of some members of Congress. He specifically told his supporters “that you should make your voices heard in a peaceful and patriotic manner”.
Such voting challenges have been posed by Democrats in previous elections under the Electoral Count Act, and Trump urged Republican lawmakers to join the effort on his behalf. He stated: “Now it is up to Congress to face this tremendous attack on our democracy. And after that, we’ll go down – and I’ll be with you – we’ll go down … to the Capitol and we’ll cheer on our brave senators and congressmen. “
He ended his speech by saying that a protest at the Capitol should “seek to give our Republicans, the weak, the pride and boldness they need to take our country back. So let’s go down Pennsylvania Avenue. “Such marches are common – in both federal and state capitals – to protest against internal actions or to support them.
The relevant legal standard for violent speech can be found in Brandenburg versus Ohio. As a free speech advocate, I have long criticized this 1969 case and what I believe to be dangerously vague standard. Even Brandenburg, however, would treat Trump’s speech as protected by the First Amendment. In this case, the government may criminalize speeches which “aim to encourage or provoke imminent lawless acts and which are likely to incite or provoke such acts”.
Trump did not call for lawless action. Instead, a protest was called in the Capitol. Furthermore, violence was not imminent; The vast majority of the tens of thousands of demonstrators present were non-violent prior to the march, and most were not upset in the Capitol. Like many violent protests we’ve seen in the past four years, including Trump’s inauguration in 2017, the criminal behavior was carried out by a smaller group of instigators. The Capitol Police knew of the planned march but turned down an offer from National Guard personnel because they did not consider violence likely.
Therefore, Congress is about to seek impeachment of a president for a speech protected by the first amendment. This would set a precedent for the impeachment of a president who could be held responsible for the acts of violence of others after using reckless or inflammatory language.
Even more troubling are the few cases that would support this type of action. Most obvious is the persecution of the socialist Eugene Debs in 1918, who spoke out passionately against the World War I draft and led figures like President Wilson to declare it “his country’s traitor”. Debs was arrested and charged with sedition, the new favorite term of today’s Democratic leaders to denounce Trump and Republican members who questioned the Biden victory.
In 1919, Judge Oliver Wendell Holmes wrote for a unanimous bank in one of the most notorious Supreme Court decisions. The court rejected Debs’ freedom of speech and ruled that it was sufficient that his words had the “natural tendency and reasonably likely effect” of deterring people from supporting the war.
That decision was a shame – but the Democrats are now arguing something even more extreme as the basis for impeachment. According to their theory, any president could be ousted for rhetoric that has a “natural tendency” to encourage seditious behavior. Even calling for supporters to protest peacefully would not be a defense. It would be like Debs first denounced the war, but also encouraged people to get involved. This standard would allow a kind of vicarious impeachment, in which a president is assigned the behavior of third parties for the purpose of removal.
Democrats are pushing for this dangerously vague standard as they protest against the fact that their own statements are incriminated by critics. For example, Conservatives have indicated that Rep. Maxine Waters, D-Calif., Urges people to confront Republican leaders in restaurants; Rep. Ayanna Pressley (D-Mass.) Insisted “there must be rioting in the streets” during the violent protests in 2020, while then Sen. Kamala Harris (D-Calif.) Said, “Protesters shouldn’t slack off let “, even if many protests turned violent. You can all rightly argue that their rhetoric was not intended as a call to violence, but that is a subjectivity-laden standard.
The damage caused by the riots this week has been enormous – but it pales in comparison to the damage caused by a new precedent of “rash impeachment” for language protected under the First Amendment. It is precisely the danger that the Framers wanted to avoid in drafting the impeachment standard. In a process that is supposed to require deliberate, not impulsive judgments, the reference to a “hasty impeachment” is a constitutional contradiction. In this new system, guilt is indubitable and innocence indubitable. It would do to the Constitution what the rioters did to the Capitol: leave it in ruins.