Published by The Lawfare Institute
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It seems likely that if and when President Trump is put on trial in the Senate for high crimes and misdemeanors, his lawyers will argue that the president was exercising his First Amendment right to free speech in the weeks after the election—and, as a consequence, his words cannot form the basis of an impeachable offense. Senators should not take this argument seriously.
By the time of a Senate trial, it is possible that the House of Representatives will have adopted additional articles of impeachment. But it is notable that the article of impeachment that the House has adopted thus far focuses on things the president has said:
In the months preceding the Joint Session, President Trump repeatedly issued false statements .... Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims .... He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol ....
President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.
At least some of the speech included in this article of impeachment would be constitutionally protected under the First Amendment if said by a private citizen. Some scholars have argued that, as a consequence, this speech cannot be a constitutionally valid foundation for a House impeachment or a Senate conviction, and that the president has a reasonable legal defense in his impeachment trial that his alleged actions were protected under the First Amendment. Even if senators are inclined to acquit the president, they should forcefully reject this line of defense.
The House can impeach and the Senate can convict an officer for engaging in lawful conduct. The constitutional impeachment standard of high crimes and misdemeanors is not limited to criminal conduct under ordinary criminal statutes—though many ordinary criminal acts, if committed by a federal officer, may be impeachable. The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate.
It is possible that at least some of the actions alleged in the article of impeachment are also criminal acts punishable in the ordinary courts. The Constitution specifically allows for criminal prosecution for the same underlying acts that were considered in an impeachment trial. Nonetheless, the criminal case is not an easy one, in part because the president’s actions might not meet the statutory conditions for a criminal offense. It is also possible that the president would have a valid free speech defense for some potential criminal charges. The Supreme Court understands the First Amendment to put severe limits on what speech can be prosecuted for inciting a riot or encouraging seditious activity, and with good reason. But the Senate need not question those First Amendment protections against criminal prosecutions in order to convict the president of impeachable offenses.
Assume for the sake of argument that the president has a valid First Amendment defense against criminal prosecution for anything included in the article of impeachment. Does that also mean the president has a valid First Amendment defense against an impeachment?
The First Amendment does not shrink the scope of the impeachment power or alter what conduct would fall within the terms of high and misdemeanors. When drafting the Bill of Rights, James Madison took care to include only provisions that he thought were compatible with the existing body of the Constitution drafted in 1787. The adoption of the First Amendment, from Madison’s perspective, would reaffirm what was already true about the Constitution, not carve out new exceptions to it. It is inconceivable that Madison would have thought that his proposed affirmation that the freedom of speech may not be abridged by the new federal government meant that an exception was being carved out of the power of Congress to impeach and remove officers for high crimes and misdemeanors. That which was impeachable before the adoption of the First Amendment was still impeachable after.
It is worth noting, as Jonathan Adler and Ilya Somin have, that government employees and political leaders have limited First Amendment protection for things that they say on the job or that affect how they can function in their job. When job security rather than criminal prosecution is on the table, the Supreme Court has long recognized that government employees can be removed from their positions for engaging in speech that would be lawful and constitutionally protected if uttered by a private citizen. In Pickering v. Board of Education, the Supreme Court held that a public school teacher could not be terminated for writing a letter for newspaper publication so long as the letter did not affect his functioning in the workplace. In Garcetti v. Ceballos, the Supreme Court upheld the termination of a deputy district attorney for speech made in pursuance of his duties as a government employee. As the court has long recognized, public employment comes with some restrictions on “the exercise of constitutional rights.” Government employees and public officials have public responsibilities that dictate that they not behave in the same way as private citizens and that they not exercise the full scope of the liberty that is allowed to the private citizen.
If a civil service employee in the Department of Justice had done the things contained in the article of impeachment, he could be justly terminated from his federal employment despite the First Amendment. If the attorney general had done the things alleged by the House of Representatives, the president could justly fire him despite the First Amendment. There are many things that could get a government employee or a Cabinet secretary fired that would not rise to the level of impeachable offenses, but there is nothing that would otherwise be an impeachable offense for which the First Amendment would shelter an officer from Senate conviction and removal.
There is only one impeachment power and one standard for impeachment. That standard for impeachable offenses applies equally to all the government officials subject to it, whether judges, executive branch officers or presidents. It is best to be careful not to deform the scope of the impeachment power by bending it to account for the specific behavior of a particular individual. Of course, judges and presidents have different job responsibilities and adhere to different standards of behavior, and the House and the Senate have traditionally recognized that distinction by following the principle that impeachable offenses involve “charges of misconduct incompatible with the official position of the office holder.” If a judge acted like a president, she could and should be impeached. But if a president has a First Amendment defense against impeachment charges, then there is no reason to think that other officers cannot take advantage of the same argument. The relevant question in an impeachment should never be whether the actions under scrutiny are constitutionally protected by the First Amendment but whether they are high crimes and misdemeanors when committed by this individual holding this office in this context.
Imagine that a sitting federal judge told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence. Is there any doubt that such a judge could be impeached and removed from office? It would not matter if a judge made such pronouncements from the bench or on social media or at a lectern. Those statements would be grossly incompatible with the judge’s office. Imagine, for example, a sitting federal judge who said in a television interview that the Republican Party is a seditious conspiracy and deserves to be wiped out and its members jailed or shot. There is no doubt that such a judge could no longer be trusted to faithfully perform his duties in the public trust. Imagine a sitting judge accompanying the incumbent president on the campaign trail and delivering speeches urging voters to reelect the president and to vote against all the members of the opposition party. Such a judge would be subject to impeachment and removal. The fact that such speech is protected by the First Amendment would be no defense. Such actions are impeachable, and the Senate could appropriately conclude that such a judge deserved condemnation and conviction and removal in an impeachment trial.
The Senate could likewise conclude that the constitutionally protected speech of Donald Trump is deeply inconsistent with the nature of his office and the public trust and appropriate grounds for impeachment and removal. It is true that there was not much movement in the House to contemplate a second impeachment of Trump until his words helped spur a deadly mob to storm the Capitol to prevent the counting of electoral votes. But the House did not need an actual riot to justify taking the president’s words seriously. Violence is not a necessary predicate for impeaching officers for their speech, nor need speech be the proximate cause for violence to be condemnable through the mechanism of impeachment.
As is often the case, impeachment should be a last resort. There might be other political tools available that could effectively counter disturbing presidential speech. But there are also occasions in which impeachment and removal ought to be on the table.
Trump has often operated close to that line. In 2017, I called attention to early speech acts of the president that broke norms of presidential behavior to a greater or lesser extent. Trump’s rally speeches comparing immigrants to “animals” who would “slice and dice” American teenage girls, or his using his platform at a Boy Scout jamboree to denounce his political predecessors, were surely offensive and inappropriate for a president—but probably not the kind of speech for which impeachment would ever be an appropriate response. By contrast, the president’s urging American troops to take political action in support of his policy agenda; his public condemnation of military personnel facing court martial; his questioning whether federal judges of particular ethnicity or background could be trusted to act in good faith; his telling police to get “rough” with suspects; and his telling border patrol agents that they should defy judicial orders are closer to the line—especially as these utterances became part of a pattern of behavior and not simply a one-time error in judgment.
It is not hard to imagine examples of speech that would be constitutionally protected if uttered by a private citizen but that could and should be grounds for impeachment and removal if uttered by the president of the United States. Speech that is divisive, intolerant, reckless or dangerous could become the foundation for an impeachment effort even if perfectly lawful. Imagine if Trump were to appear at the White House press briefing room in blackface and perform a minstrel show. Imagine if Trump had responded to the Charlottesville riots not with a series of ambiguous and contradictory statements but with an impassioned speech in defense of white nationalists and the need for street justice against left-wing protestors. Imagine if the president had responded to the video of the killing of Ahmaud Arbery, a Black jogger pursued and shot by three white men, with a public statement declaring that the victim deserved his fate and used racial slurs in saying that such people needed to learn to stay in their own neighborhoods. Imagine if the president invited leaders of white nationalist groups to join him on stage at a rally and gave his own version of Confederate Vice President Alexander Stephens’s cornerstone speech declaring that the American government is founded “upon the great truth that the negro is not equal to the white man; that slavery, subordination to the superior race is his natural and normal condition.” Imagine if the president told a public audience that it would be fitting and proper if House Speaker Nancy Pelosi and Chief Justice John Roberts got what was coming to them, which was a bullet between the eyes. Imagine if the president had borrowed a page from Socialist leader Eugene Debs and proclaimed to a crowd of supporters that some of them would “lack the fiber to endure the revolutionary test” but that they should be willing to “fight for them; go to jail or to hell for them” and “shed their heroic blood” to lay “the foundation of the first real democracy that ever drew the breath of life in the world.” Imagine if a president spoke from the Resolute Desk in the Oval Office to inform a television audience that the members of the opposition party are “vermin” and should be “eradicated” by patriotic citizens and to celebrate the fact that the members of the president’s own party had more “rough guys” who were well armed and could “play it tough.”
Such a president should be hastily impeached and removed precisely because such a president would be engaged in behavior fundamentally incompatible with the high office that he held and subversive of the ideals and functioning of the American republic. One would not need to demonstrate that such speech had led to violence to conclude that it would be intolerable for a sitting president to engage in such speech, that such speech is, in the most fundamental possible sense, unpresidential. That such speech is in and of itself an assault on the constitutional order when uttered by a sitting president.
Josh Blackman and Seth Barrett Tillman have argued that Americans “should not forget the free speech lessons from President Johnson’s impeachment trial.” Indeed, we should not. As they note, among the articles of impeachment adopted by the House against Andrew Johnson was one that charged him with giving a series of “inflammatory” speeches that tended to bring Congress into “hatred” and contempt” by denouncing it as despotic and illegitimate. Johnson’s defenders argued that the president “has the right to make foolish speeches” just like anyone else, including members of Congress. Johnson was, by the slimmest of margins, ultimately acquitted in his Senate trial.
I would draw a different lesson from the Johnson experience, as I have argued at some length. It is, of course, true that the impeachment power can be abused and that there are examples of presidential speech that are not very presidential but that should not be impeachable. If Johnson were a modern president, nobody would be particularly surprised by inflammatory rhetoric calling Congress into disrepute. But within the norms of the 19th century, such rhetoric had long been viewed as the kind of tool of a demagogue that could threaten the very survival of a republic. Presidents from George Washington to Abraham Lincoln had taken great care not to give inflammatory public speeches or speeches questioning the authority or wisdom of Congress. Johnson was a dramatic norm-breaker, and Republican politicians at the time thought this was a norm that needed to be protected.
Norms are not always permanent. For better or for worse, the prohibition on “foolish speeches” is an aspect of the American constitutional order that has not been retained. But the important point is that earlier generations of Americans understood that some forms of constitutionally protected speech by presidents were too transgressive to be tolerated. Americans today might disagree with them about what kinds of speech are intolerable, but we should share with them the view that it is not anything goes when it comes to presidential rhetoric.
Moreover, there is an important context and undertone to Johnson’s speech that should not simply be ignored. It might seem quaint that a president might be impeached and nearly convicted for giving speeches that called Congress into “disrepute,” but for many Republicans it seemed like a matter of life or death at the time. Johnson, of course, assumed office in the aftermath of a presidential assassination and a bloody civil war. Many people feared that Johnson had colluded with the assassins and that he was too sympathetic to the former rebels. Washington, D.C., was aflame with rumors that Johnson might launch a new civil war, declare martial law, disband Congress, and arrest Unionists. When Johnson told audiences that the Republicans were running a “rump Congress” that was illegitimate and did not represent the nation, he was amplifying the arguments of the former secessionists that helped justify violent resistance to Reconstruction and federal authority in the South. Johnson told audiences that he had stood up to traitors who sought to destroy the government and the Constitution in 1860, and as president he would “turn round at the other end of the line” and resist the “traitors” who sought to destroy the government and the Constitution from the halls of Congress in 1866. He told audiences “why don’t you hang Thad Stevens,” the Radical Republican who would later lead the impeachment effort in the House of Representatives. It is no surprise that Congress might think a president should be impeached and removed for such rhetoric, even if mobs had not yet stormed the Capitol chanting “hang Thad Stevens.” People today might think the same.
Trump liked to assert that he was “totally vindicated” by the Mueller report and the first impeachment verdict. Few neutral observers would agree with that characterization of those events. Johnson did not have the advantage of Twitter, but he might have said the same after his narrow acquittal in his Senate impeachment trial. But few neutral observers would have thought he was vindicated either. It is certainly true that generations of Southern apologists denounced the Johnson impeachment as misguided, but that judgment has not aged well. More to the point, no one at the time thought that Johnson’s conduct had been vindicated. Republican politicians overwhelmingly thought Johnson’s speech was unpresidential, inappropriate and dangerous. For more than a generation, subsequent presidents took care not to engage in similar behavior and instead worked to return to the rhetorical norms that had guided the nation since its founding. Johnson was allowed to serve out the final weeks of his term, but the impeachment was successful in its most important task of marking off some presidential behavior as intolerable. Johnson was not a model to be followed. He was a warning of what was to be avoided.
Earlier impeachments had served a similar function of telling government officials that they should watch what they say and how they say it. When the Jeffersonians impeached federal district judge John Pickering and Supreme Court Justice Samuel Chase, Pickering’s and Chase’s speech was front and center. Whether from alcoholism or dementia, the Federalist Pickering had let loose a politically charged tirade from the bench. Chase had more systematically taken the lead in opposing “those creatures called democrats” and the rise of the “mobocracy” both before and after the election of 1800. The Jeffersonians likewise charged him with “inflammatory” rhetoric unbecoming of a sitting judge. Pickering was convicted and Chase was nearly so, but again, judges got the message. No future federal judge thought it proper to follow Chase’s example of going on the campaign trail to stump for an incumbent president or denouncing a political party from the bench. The impeachment laid down markers of unacceptable speech for a government official, even when that speech was protected by the First Amendment.
The proper lesson of such past impeachment experiences is not that free speech is a perfectly adequate defense to impeachment charges, but that the impeachment process is an effective instrument for identifying and reinforcing fundamental norms of political behavior, including behavioral norms regarding speech. It is certainly true that the Chase and Johnson impeachments were largely partisan affairs. Some Democrats found it acceptable that the president would call Republican congressional leaders traitors, and some Federalists thought it admirable that a Supreme Court justice would campaign for President John Adams. They did not have the better side of that argument. Today, Americans tolerate, and even expect, sitting presidents to engage in fiery partisan rhetoric in a way that our 19th century forebears would have found shocking. We judge modern presidents by our standards, not those of our ancestors.
But some presidential rhetoric remains beyond the pale. It is easy to imagine an impeachment based on inflammatory rhetoric that would be an abuse of the impeachment power. The fact that a power can be abused, though, does not mean that the power does not exist. Legislators should be cautious about impeaching on the basis of speech, but that does not mean they should set aside all judgment in order to recognize a blanket First Amendment defense to inflammatory rhetoric by government officials.
If what the president is alleged to have done in the article of impeachment adopted by the House does not rise to the level of a high crime and misdemeanor, that would be one thing—though it easily does. But if the Senate finds that the president has committed a high crime and misdemeanor, the fact that his actions might be covered by the First Amendment is not a defense that should prevent his impeachment and removal. When “but my free speech” is the last line of defense against conviction in an impeachment trial, conviction should be assured.