The First Modification Doesn’t Shield Trump In opposition to Impeachment for his Function in Inciting the Assault on the Capitol –

52 - Free Minds and Free Markets

In an interesting recently published post, co-bloggers Josh Blackman and Seth Barrett Tillman argue that President Trump cannot be tried and convicted for his role in sparking the uprising at the Capitol, for participating in a speech under the protection of the First Amendment involved. Your argument is clever, but fundamentally wrong. And for a very simple reason: the first amendment does not protect senior government officials from being removed from office for their speech.

For current purposes, I assume that Blackman and Tillman are right to conclude that Trump’s speech is the type protected under current First Amendment doctrine and that it would be unconstitutional to criminalize or civilize him for it To impose sanctions. In fact, I think you might be right on this point. However, this is irrelevant in a context where the relevant penalty is to be removed from a high position in government power – and possibly to be excluded from future in office.

Under the current Supreme Court precedent, subordinate government employees who do not make political decisions have at least significant protection from being fired for their views or political speech. However, the Court of Justice has also made it clear in various judgments that higher-level political decision-makers whose political views are relevant to the performance of their tasks do not enjoy such protection. In fact, senior government officials are constantly being fired for their political speech. Donald Trump himself fired numerous cabinet officials and other subordinates for expressing views he disliked (Defense Secretary Mark Esper was a notable recent example).

The precise dividing line between a policy maker whose views are relevant to his or her work and a subordinate officer who enjoys First Amendment protection against dismissal is difficult to specify. But it’s pretty obvious that the president falls on the earlier side of the gap. If anyone is a high-level government with enormous policymaking discretion whose views are relevant to job performance, it is the President of the United States!

If a speech protected by the first amendment could never be a cause for the impeachment and removal of the president, it would lead to absurd and dangerous results. Imagine a scenario like this:

The President of the United States makes a speech expressing his desire “to do everything I can legally do to promote fascism”. Then he exhorts his followers (known to contain elements of violence) “to fight like hell to establish fascism and if you don’t fight like hell you will have no more land”. After this speech, neo-Nazi and white supremacist supporters of the president attacked a government building, resulting in numerous injuries and deaths.

Everything in the hypothetical speech above is protected by the first amendment. It’s actually very similar to Trump’s speech just before the recent uprising, quoted by Blackman and Tillman (I’ve purposely adapted some of Trump’s languages). The only significant difference is the addition of references to fascism. And this difference doesn’t matter for the purposes of the first change. Indeed, Brandenburg v Ohio, the classic 1969 case cited by Blackman and Tillman, contained inflammatory remarks by a neo-Nazi KKK leader. A fascist or Klansman cannot be punished or imprisoned for expressing dire political views, nor can he be discriminated against in the provision of government benefits such as social benefits or education loans.

Still, Congress would have good reason to indict and remove a president who actively campaigned for and promoted fascism, instigated fascist violence, and otherwise tried to replace our constitutional system with a fascist one. And that would be the case even if the talk were of the kind generally protected by the first amendment and his actions did not violate the letter of the federal law.

To use the powers of the presidency to promote fascism, including legal powers, would be an abuse of power and a threat to the constitutional order. The same goes for the Presidency’s “bullying pulpit” for the same purpose, especially when it led to predictable violence.

What applies to the president’s promotion of fascism also applies to Trump’s repeated justification and promotion of violence by his supporters, which date back to the 2016 campaign. All or most of it can be protected from criminal and civil sanctions by the first change. But it is still an abuse of presidency power and still a cause for impeachment and removal.

The same rationale applies to Trump’s recent efforts to pressure the Georgian Foreign Minister to fraudulently change the number of votes in his state. This is the other potential impeachment cause currently under consideration by House Democrats [see Update #2 below]. Trump’s actions in this case may have violated federal and state laws. If not, the first amendment there protected his statements in the sense that he could not be subject to criminal or civil sanctions. Even so, pressuring government officials to engage in electoral fraud is an abuse of the president’s power worthy of impeachment.

The obvious answer to this argument is that it could create a slippery slope for Congress to indict and remove presidents just to express views they disapprove of. My criticism of Josh Blackman’s similarly slippery argument against Trump’s first impeachment also applies here:

Every president has partisan opponents who would be happy to “get” him if they can. Nevertheless, slippery hang 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. It is very unlikely that they will do this for frivolous reasons. [Prominent conservative legal scholar] Michael Paulsen explains these and some other restrictions on improper impeachment in more detail here.

Ultimately, the real danger is not that too many good presidents will be unjustly 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.

Let the presidents – even the “good ones” – lose more sleep because of the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing that we are much safer against abuse of government power.

I’ve touched on other relevant points in this post explaining why the occasional potentially unfair impeachment and removal of a “normal” president is a worthwhile payment to get rid of dangerous threats like Trump – and to discourage future presidents from emulating them.

The first amendment issue is not the only possible objection to the Trump indictment. I myself have found that there may be legitimate regulatory reasons for not having a second impeachment if it looks like it will actually work in Trump’s favor.

I will likely say more about the other topics associated with these impeachment efforts in future posts. In this case, I just wanted to address Blackman and Tillman’s First Amendment theory.

UPDATE: I wrote this post before I saw Jonathan Adler’s insightful response to Blackman and Tillman, which highlights points similar to mine. I should like to add that I, too, agree to the President being charged with abuse of power that is not considered a violation of certain criminal or civil laws. For helpful summaries of the relevant historical evidence on this point, see recent analysis by Gene Healy of the Cato Institute, Keith Whittington, and noted Conservative jurist Michael Stokes Paulsen (here, here, and here).

UPDATE # 2: The draft impeachment case currently being circulated by some members of the House of Representatives combines Trump’s role in the attack on the Capitol and his appeal to the Georgian Foreign Minister into a single count.

UPDATE 3: In the original version of this post, I accidentally referred to former Secretary of Defense Mark Esper as “Mike Esper”. I apologize for the mistake I corrected.