The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I understand that actually taking seriously what the President of the United States says and writes brings with it the risk of being accused, at least by the more vigorous of Trump's defenders among our readers, of having succumbed to Trump Derangement Syndrome. (More about that below.)
But he is, as his stoutest defenders continually remind us, the duly elected president, and they might be more persuasive in their defense if they treated him as such, and not as some bumbling nincompoop whose says meaningless and nonsensical things that we shouldn't be getting so bent out of shape over.
Here are a few of the things, repeated verbatim (italics added), that Trump has tweeted, or said, in the last few days:
Rep. Adam Schiff illegally made up a FAKE & terrible statement, pretended it to be mine as the most important part of my call to the Ukrainian President, and read it aloud to Congress and the American people. It bore NO relationship to what I said on the call. Arrest for Treason?
Why isn't Congressman Adam Schiff being brought up on charges for fraudulently making up a statement and reading it to Congress as if this statement, which was very dishonest and bad for me, was directly made by the President of the United States? This should never be allowed!
His lies were made in perhaps the most blatant and sinister manner ever seen in the great Chamber. He wrote down and read terrible things, then said it was from the mouth of the President of the United States. I want Schiff questioned at the highest level for Fraud & Treason…..
Adam Schiff made up my conversation, every word of it, and then read it to Congress as though I said it. I'll tell you what, he should resign from Congress … he's a low-life, he should be forced to resign. He took a perfect conversation, realized he couldn't read it to Congress, it was a perfect conversation … He took that conversation, which was perfect, he said: "I can't read this." And he made up a conversation and said it to Congress and to the American people. And it was horrible, what he said. And that was supposed to be coming from me, and it was all fabricated. He should resign from office in disgrace, and frankly they should look at him for treason, because he is making up the words of the President of the United States, it's a disgrace and it shouldn't be allowed to happen.
Congressman Adam Schiff should resign for the Crime of, after reading a transcript of my conversation with the President of Ukraine (it was perfect), fraudulently fabricating a statement of the President of the United States and reading it to Congress, as though mine! He is sick!
One hardly knows where to begin to dissect the venality and stupidity of these remarks. Arrest for Treason? No, you cannot arrest Adam Schiff for treason.
Let's begin with the Speech and Debate Clause of the US Constitution (Art. 1 Sec. 6), shall we? The President, who has sworn and oath to preserve, protect, and defend the Constitution, appears not to be aware of its existence. It provides that members of Congress "shall not be questioned in any other Place" for "any Speech of Debate in either House." If Rep. Schiff "fraudulently fabricated" a statement of the President and "read it to Congress as if it was [his]"—a ridiculous charge (see below), but let that pass for the moment and assume it is true—it is not a crime (or even a "Crime"), and he cannot be arrested for it.
Second: Schiff's speech does not and could not possibly, by any remote stretch of the imagination or any remotely plausible interpretation of the law, constitute treason. Another clause of the Constitution that the President appears unaware of is in Art. I Sec. 3:
"Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."
Notice, among other things, the requirement of an "overt Act"—you cannot be guilty of treason for speech alone. So even if Rep. Schiff made up a conversation that he purported was Trump's, and even if he were not protected by the Speech and Debate Clause, he's not committing treason by doing so.
And the notion that Rep. Schiff's statement—even if totally fabricated and bearing "NO relationship to what [Trump] said on the call"—constitutes "levying War" on the United States, surely, is too ridiculous to need serious rebuttal, no? Donald Trump is not the United States, and an attack on him is not an attack on the United States. And the Sedition Act, which made it a crime to
" … write, print, utter, or publish, … any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States …
was repealed some time ago—in 1801, to be exact. Having flirted with the idea, embodied therein, that the government and the nation were one and the same, and that an attack on the one is an attack on the other, we rid ourselves of that idea, and it is deeply unfortunate that Trump is resurrecting it now.
And finally, on the actual merits of Trump's claim. Here is the portion of the statement read by Rep. Schiff at the start of last week's hearings that the President of the United States asserts is a "Crime," a "FRAUD," and, possibly, "TREASON":
"It reads like a classic organized crime shakedown. Shorn of its rambling character and in not so many words, this is the essence of what the president communicates. We've been very good to your country, very good. No other country has done as much as we have. But you know what? I don't see much reciprocity here. I hear what you want. I have a favor I want from you though. And I'm going to say this only seven times so you better listen good. I want you to make up dirt on my political opponent, understand. Lots of it. On this and on that. I'm going to put you in touch with people, not just any people, I am going to put you in touch with the attorney general of the United States, my Attorney General Bill Barr. He's got the whole weight of the American law enforcement behind him. And I'm going to put you in touch with Rudy. You're going to love him. Trust me. You know what I'm asking. And so I'm only going to say this a few more times. In a few more ways. And by the way, don't call me again. I'll call you when you've done what I asked.
This is in sum and character what the president was trying to communicate with the president of Ukraine." (italics added)
Was what Schiff said a fair characterization of what Trump said? Reasonable people can, I suppose, disagree about that—the way that reasonable people disagreed about whether AG Barr's summary of the Mueller Report was, or was not, a fair characterization of that document.
But bear in mind, please: we don't know what Trump said. All we know is what Trump's White House said he said—a "Memorandum" that states, on the first page of the document:
CAUTION: A Memorandum of a Telephone Conversation (TELCON) is not a verbatim transcript of a discussion. The text in this document records the notes and recollections of Situation Room Duty officers and NSC policy staff assigned to listen and memorialize the conversation in written form as the conversation takes place.
We don't know what Trump actually said because he has not released a full transcript or recording of the call.
It is somewhere between outrageous and laughable for Trump to claim, on the one hand, that Schiff's characterization constitutes not just a crime but quite possibly a capital crime, while simultaneously not releasing the actual transcript of the conversation so we can judge for ourselves.
Here's my characterization of what he's doing now: "Trust me. I've given you my version of the conversation. It was perfect. Trust me. Saying otherwise is criminal and possibly treasonous."
Moroever, no reasonable person could possibly think, listening to Rep. Schiff or reading his remarks, that he was giving us a verbatim account of the Trump call—"putting words in the mouth of the president." He couldn't have been much clearer: This is the "essence," in "not so many words," the "sum and character" of the conversation. It's not what he said verbatim, it's what I think he meant to say.
Does anyone—anyone?—not see Trump's tirade here for what it is: a transparent (and rather clumsy) attempt to distract our collective attention away from Trump's own behavior? It is difficult for me to how anyone—whatever grievances one may have with the Democrats, Hillary Clinton, President Obama, the Squad, etc. etc.—can fail to call it out as unbefitting a president of the United States.
Finally, regarding Trump Derangement Syndrome: I'm getting rather tired of the phenomenon whereby anyone who examines and tries to comprehend what our president has done or said and to have a rational conversation about it is accused of suffering from TDS. Let's change that narrative, shall we? A number of diseases or syndromes are named after well-known sufferers from the disease—Lou Gehrig's disease being best known in this category. We've been thinking about Trump Derangement Syndrome all wrong! It refers, actually, to the particular form of derangement from which our president appears to be suffering. I invite readers to read what I have written about the Ukrainian Affair and what Trump has written about the Ukrainian Affair (additional excerpts from Trump's Twitter feed are below, and the rest can be found here), and to ask yourself: who's the deranged one here?
More verbatim excerpts from the President's Twitter feed:
Rep. Adam Schiff fraudulently read to Congress, with millions of people watching, a version of my conversation with the President of Ukraine that doesn't exist. He was supposedly reading the exact transcribed version of the call, but he completely changed the words to make it sound horrible, and me sound guilty. HE WAS DESPERATE AND HE GOT CAUGHT," Trump wrote. "Adam Schiff therefore lied to Congress and attempted to defraud the American Public. He has been doing this for two years. I am calling for him to immediately resign from Congress based on this fraud!"
As I learn more and more each day, I am coming to the conclusion that what is taking place is not an impeachment, it is a COUP, intended to take away the Power of the People, their VOTE, their Freedoms, their Second Amendment, Religion, Military, Border Wall, and their God-given rights as a Citizen of The United States of America!
The congratulatory phone call with the Ukrainian President was PERFECT, unless you heard Liddle' Adam Schiff's fraudulently made up version of the call. This is just another Fake News Media, together with their partner, the Democrat Party, HOAX!
To show you how dishonest the LameStream Media is, I used the word Liddle', not Liddle, in discribing Corrupt Congressman Liddle' Adam Schiff. Low ratings @CNN purposely took the hyphen out and said I spelled the word little wrong. A small but never ending situation with CNN!
The Fake News Media wants to stay as far away as possible from the Ukraine and China deals made by the Bidens. A Corrupt Media is so bad for our Country! In actuality, the Media may be even more Corrupt than the Bidens, which is hard to do!
Very simple! I was looking for Corruption and also why Germany, France and others in the European Union don't do more for Ukraine. Why is it always the USA that does so much and puts up so much money for Ukraine and other countries? By the way, the Bidens were corrupt!
WHO CHANGED THE LONG STANDING WHISTLEBLOWER RULES JUST BEFORE SUBMITTAL OF THE FAKE WHISTLEBLOWER REPORT? DRAIN THE SWAMP!
Again, the President of Ukraine said there was NO (ZERO) PRESSURE PUT ON HIM BY ME. Case closed!