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Trump’s First Amendment rights don’t matter for his impeachment trial

Scholars disagree about whether a private citizen who gave that Jan. 6 speech could be prosecuted. The answer is irrelevant.

Supporters of President Donald Trump storm the Capitol in Washington on Jan. 6. (John Minchillo/AP)

Former president Donald Trump is about to be tried in the Senate for his role in allegedly encouraging the Jan. 6 attack on the Capitol by a mob intent on overturning the results of the 2020 presidential election. Trump’s lawyers and some legal scholars claim it would be unconstitutional to convict Trump, because his speech was protected by the First Amendment.

When he stood on the Ellipse and told the crowd that “if you don’t fight like hell, you’re not going to have a country anymore,” and that “we’re going to walk down Pennsylvania Avenue … we’re going to the Capitol,” he may have been provocative and unwise. But, so goes the argument, he was not inciting imminent violence, according to the standards established by the Supreme Court.

There is indeed a high threshold for establishing that someone has crossed the line into speech subject to criminal prosecution. Scholars disagree about whether Trump did so. But this debate misses the point: Government officials can be impeached and removed for speech that is not criminal. The First Amendment protects private citizens against criminal and civil sanctions for a wide range of speech. But it doesn’t protect government officials against impeachment and conviction.

On Feb. 7, lawmakers and members of President Biden's Cabinet prepared for a week packed with an impeachment trial and coronavirus relief talks. (Video: Monica Akhtar/The Washington Post)

Under Supreme Court precedent, lower-level government employees have some significant protection against being fired because of their political views and speech. But the court has also made clear that higher-level policymaking employees enjoy no such protection. Indeed, high-ranking officials get fired because of their political speech all the time. Trump himself fired numerous subordinates because they expressed views he didn’t like (such as Christopher Krebs, a cybersecurity official who said the presidential election was not marked by fraud). Similarly, administrations of both parties routinely refuse to appoint people to public office whose views they disapprove of, and voters routinely refuse to support candidates for such reasons.

If presidents could only be impeached if their speech crossed the line into illegality, absurd consequences would follow. For example, Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship. After all, speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

The idea that officials can be impeached and removed for noncriminal speech that violates duties of their office dates back to the Founding era. Two early impeachments of federal judges were brought on in large part by speech that indicated they could not be trusted to perform their duties properly, including one (Judge John Pickering) who was convicted because he engaged in a tirade from the bench in 1802, at odds with norms of judicial behavior, openly declaring his bias in favor of the Federalist Party and avowing that “I am now damned drunk.” In 1804, Congress impeached and nearly convicted Supreme Court Justice Samuel P. Chase for, among other things, “inflammatory” political rhetoric, including denouncing President Thomas Jefferson’s Democratic-Republican party as a “mobocracy.”

This history reflects the original understanding that officials can be impeached for abuses of power and undermining of the Constitution that do not qualify as crimes, such as usurpation of power belonging to other branches of government and gross neglect of duty. It is difficult to imagine a more serious attack on the Constitution than Trump’s attempts to reverse the outcome of an election and his reckless promotion of violence by his supporters, which long predated the events of Jan. 6. Many of those who stormed the Capitol have said they did it because they concluded Trump wanted them to.

Some Democratic senators this week may argue that Trump is guilty of criminal incitement of violence, the standard for which was established by the Supreme Court’s ruling in Brandenburg v. Ohio (1969): Such speech is not protected by the First Amendment if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” But one could disagree with the argument that Trump’s speech meets that standard, and still find him guilty in an impeachment proceeding.

The same logic applies to Trump’s call to Georgia Secretary of State Brad Raffensperger — in which Trump tried to pressure him to alter that state’s election results. Some observers have said Trump violated federal election law, which holds that it is a crime to “willfully … deprive or defraud the residents of a state of a fair and impartially conducted election process” — or attempt to do so. Others are not convinced he crossed that line. But whether he committed a crime or not, Trump still attempted to undermine the peaceful transition of power required by the Constitution.

Republican senators want Trump gone. If they say so, they’ll be gone, too.

Some who raise the free-speech argument against impeachment argue the rules that apply to judges and appointed executive branch officials do not necessarily apply to presidents, because the latter are elected. Superiors can fire subordinates for speech acts, but Congress supposedly cannot remove a president on that basis, because Congress is not the president’s superior; only the voters are.

But nothing in the text, history or original meaning of the Constitution provides for different impeachment standards for elected officials and appointed ones. To the contrary, the Constitution clearly states: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The criteria for presidents and appointed “officers” are exactly the same. The same goes for the rules for imposing the additional penalty of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

Similarly, nothing in the text or original meaning of the Constitution gives elected officials more expansive First Amendment rights than appointed ones. Moreover, one branch of government can remove members of another even if they are not otherwise their superiors. The whole point of impeachment is to give Congress the power to remove executive and judicial officials who abuse their power in various ways. (In that limited sense, Congress is indeed the president’s superior.)

Some fear that impeaching presidents for their speech might lead to a slippery slope where Congress might impeach them merely for expressing views legislators disapprove of. But slippery slope fears about impeachment are misplaced. We need not worry about frivolous removal because conviction requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach in the first place. The former is virtually impossible to achieve unless many senators from the president’s own party vote to convict him. They are highly unlikely to do so for frivolous reasons.

If anything, there is much more reason to fear that presidents who deserve to be convicted will get away with serious abuses of power, because their partisan allies refuse to hold them accountable. In all of American history, so far, only one senator (Mitt Romney in Trump’s first impeachment trial) has voted to convict a president of his own party.

There are other possible arguments against conviction. Senators could, for instance, conclude that he no longer poses a threat, having departed office. But they should not let Trump off the hook based on the specious theory that he is protected from impeachment by the First Amendment.