Impeaching Trump for his Function in Inciting the Assault on the Capitol Doesn’t Violate “Established Free Speech Rights” –

58 - Free Minds and Free Markets

President Andrew Johnson.

In a recent post, co-bloggers Josh Blackman and Seth Tillman duplicate their earlier claim that the indictment and conviction of Donald Trump for his role in inciting the attack on the Capitol would violate his First Amendment rights. You acknowledge that the Senate is not necessarily bound by Supreme Court case law on the matter. However, they continue to insist that the conviction would violate “established initial adjustment rights”.

In reality, it wouldn’t do that. As critics such as Jonathan Adler, Andrew Koppelman and I pointed out in response to Blackman and Tillman’s previous post, the established First Amendment Act does not protect senior government officials from being removed from their positions for their speech. If that were the case, Trump would have violated the First Amendment himself on any of the many occasions he would have fired a cabinet member or other high-ranking subordinate to express views the president did not like. And if officials can be removed from their positions for such reasons, there is also no restriction on the first change if the powers of the Senate are used to exclude accused and convicted officials from office.

In my previous post on the subject, I also noted some absurd and dangerous consequences of assuming the Blackman-Tillman position and raised concerns that my own view could itself lead to a dangerous, slippery slope.

In their most recent play, Blackman and Tillman fail to address the fundamental flaw in their position that critics have pointed out. But they try to back up their reasoning by citing the precedent for the impeachment of Andrew Johnson in 1868. You rightly point out that one of the eleven articles of the impeachment against Johnson aimed at speeches in which he “tried”[ed] To disgrace, ridicule, hate, despise and accuse the United States Congress and its various branches; to undermine and destroy the esteem and respect of all the good people of the United States for Congress and the legislature . “And it is also true that some of the senators who voted in favor of the acquittal claimed that condemning this article would violate Johnson’s First Amendment rights.

But I’m skeptical that this goes a long way in helping Blackman and Tillman defend Trump against impeachment today. As they also point out, many other members of Congress opposed the position that condemnation violated Johnson’s First Amendment rights in any way. And this group is by and large far more formidable than the coalition of white supremacist Democrats and sometimes corrupt Republicans who barely managed to acquit Johnson (the 35:19 vote for condemnation only required a 2/3 majority) .

As Blackman and Tillman note, the pro-impeachment camp included such figures as Senator Charles Sumner (a longtime leader of the anti-slavery constitutional movement whose ideas underpinned the Reconstruction Amendment) and Rep. John Bingham, perhaps the most important single frame of the 14th century Modification. If we are to argue on the basis of authority and precedent, I will run Bingham and Sumner through Johnson’s attorneys every day of the week.

In general, Johnson’s close acquittal is no longer seen in the positive light that many saw from the late 19th century to the mid-20th century (when John F. Kennedy praised him in his book Profiles in Courage). Today, many (not all, of course) historians and legal scholars acknowledge that Johnson actually deserved to be convicted for attempting to sabotage reconstruction and maintain white supremacy in the south after the Civil War. This was the broader problem underlying the specific details of the charges against him. Historian Annette Gordon-Reed, author of a biography of Johnson, has a helpful summary:

The confrontation between Johnson and the men who wanted to remove him from office, the so-called radical Republicans, was a struggle over the future direction of the United States; a struggle with implications that reverberate to this day. Johnson’s real crime, in the eyes of opponents, was using the power of the presidency to prevent Congress from providing aid to the four million African Americans liberated after the Civil War. Johnson’s deep dislike of blacks, not his view of the Constitution, guided his actions …

Johnson had opposed slavery because he thought it hurt the poor white class he came from. Blacks should be freed but left at the mercy of the white southerners. His plan of action to get the whites back under control in the South put him on a collision course with radical Republicans who believed the South needed to be transformed to include blacks on an equal footing in American society.

Johnson opposed Congressional measures taken to help African Americans become productive members of society with the dignity bestowed upon whites. He opposed black suffrage, land reform, and efforts to protect blacks from the violence that southern whites used against them after the war ended.

Johnson had repeatedly used his powers as president to undermine Congress efforts to protect the rights of recently freed slaves and other blacks in the south. His apparent violations of the Tenure of Office Act (the immediate target of most impeachment articles) were part of an effort to replace officials willing to enforce the laws of Congress with those he hoped would drive his own efforts Would support sabotage. Whether or not he broke any particular applicable law (Johnson’s defense attorneys claimed the Tenure of Office Act was unconstitutional, a view eventually endorsed by the Supreme Court in 1926), Johnson had grossly abused his powers and deserved it, definitely to be removed from office For discussions of the reasons why impeachment for technically legal abuse of power is permissible, see analyzes by Keith Whittington and noted conservative legal scholar Michael Stokes Paulsen.

This does not mean that every single impeachment notice filed against Johnson was justified. In my view, Article 10 (which focused on his speech) was weak and likely deserves to be rejected. In the end, the Senate didn’t even vote on it. But Johnson’s statements attacking Congress were much less dangerous and egregious than Trump’s more recent ones. Among other important differences, Johnson’s remarks were not made in front of a crowd with many known violent elements about to march on the Capitol. Nor did they come after a long history of justification and praise for violence by his followers.

Be that as it may, Andrew Johnson’s acquittal was not a valuable precedent, but a shameful episode in American history in which Congress let a malicious president get away with gross abuse of power. It shouldn’t be used to help another malicious president get off the hook today.