Freedom of Speech Doesn't Mean What Trump's Lawyers Want It to Mean (The Atlantic)

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Carrie Cordero
@carriecordero
“Even if the 1st Amendment protected Trump from criminal & tort liability for his 1/6 exhortation to the crowd that later stormed the Capitol it has no bearing on whether Congress can convict & disqualify him” - Keisler & Bernstein ⁦⁦@TheAtlantic⁩

The First Amendment Is No Defense Against Impeachment
Freedom of speech does not limit the removal and disqualification powers conferred on Congress by the Constitution.
theatlantic.com
4:49 PM · Feb 8, 2021

https://www.theatlantic.com/ideas/archive/2021/02/first-amendment-no-defense-against-impeachment/617962/

Front and center in former President Donald Trump’s defense this week will be the argument that convicting him and disqualifying him from holding future office would violate his First Amendment rights—that it would essentially amount to punishing him for speaking his mind. His new lawyer, David Schoen, has warned that convicting Trump “is putting at risk any passionate political speaker, which is against everything we believe in in this country.”

That is wrong. Even if the First Amendment protected Trump from criminal and tort liability for his January 6 exhortation to the crowd that later stormed the Capitol, it has no bearing on whether Congress can convict and disqualify a president for misconduct that consisted, in part, of odious speech that rapidly and foreseeably resulted in deadly violence.

To start, let’s examine how breathtaking Trump’s argument is. His advocates are relying on the 1969 Supreme Court case Brandenburg v. Ohio, which held that the First Amendment prohibits criminal liability for advocating violence that is not imminent. According to their theory, Congress could not impeach, convict, remove, or disqualify a president who, like Clarence Brandenburg, spoke at a Ku Klux Klan rally in a white hood, advocated violence, used the N-word repeatedly in declaring that African Americans should be forcibly returned to Africa, and proclaimed that “the Jew” should be sent to Israel.

Nor, under Trump’s argument, could Congress use its powers if the same president burned an American flag on national television to demonstrate contempt for the country he or she had been chosen to lead. Nor could Congress use its powers if the same president wore a swastika while leading a Nazi march through a Jewish neighborhood.

These supposed limitations on Congress’s powers are not merely contrary to common sense; they are without any basis in law. Courts have held that none of those activities can constitutionally be criminalized. But as the University of Missouri law professor Frank Bowman exhaustively demonstrated in The Atlantic in 2019, the impeachment, conviction, removal, and disqualification powers of Congress do not require that the president, or any other federal official, has committed a crime. The phrase “high Crimes and Misdemeanors,” which Article II, Section 4 of the Constitution declares impeachment, conviction, removal, and disqualification to remedy, dates back to 1386. As the nation’s Founders knew, that term had been used repeatedly for four centuries to remove and disqualify officials for heinous conduct that was committed while in office but was not a crime. For example, in a celebrated instance, Massachusetts removed its chief justice in 1774 for accepting a royal salary—an act that was politically disloyal, but not a crime. In 1788, James Madison told the Virginia ratifying convention that abusing the pardon power—also not a crime—would be impeachable. In “Federalist No. 65,” Alexander Hamilton likewise wrote that “the abuse or violation of the public trust” would be impeachable. And, in the more than two centuries since the Constitution was ratified, multiple officials have been impeached, convicted, removed, and disqualified for official conduct that was heinous but not criminal. Indeed, President Andrew Johnson was impeached, and President Richard Nixon would have been impeached and convicted, on certain counts that did not allege a crime. So while the First Amendment might protect a former president from criminal and tort liability for his speech, that same speech can still demonstrate his “abuse or violation of the public trust,” warranting conviction and disqualification by the Senate.

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