Can President Trump be Impeached and Removed on the Grounds of Incitement?

If Trump’s speech is protected by the First Amendment, then incitement cannot be grounds for impeachment.


[This post was co-authored by Josh Blackman and Seth Barrett Tillman]

Over the past four years, we have defended many of President Trump's actions as a constitutional matter, while criticizing those actions as a policy matter. One of our first amicus briefs in the Emoluments Clauses litigation highlighted our position: 

President Trump's business activities may raise ethical conflicts under modern good governance standards, but they raise no constitutional conflicts under the Foreign and Presidential Emoluments Clauses.

Prior to the 2019 impeachment, Blackman wrote in the New York Times that President Trump, whose phone call with the Ukrainian President was motivated, in part, for "personal political gain," still did not commit bribery or any other criminal offense, much less an impeachable "abuse of power." Even where we supported the legal position of a politician whose actions we were critical of, our academic writings and court filings advanced a different facet of the public good. Our purpose, always, has been to educate: to teach the courts, and the public, about novel and difficult constitutional and legal questions of first impression. We were never concerned with the risks of public retribution, and we are still not. Nevertheless, we write this post after some personal reflection.

Both of us were shaken by the events of January 6, 2021. Over the past several days, President Trump has taken actions that heedlessly risked third-parties' violating trespassing laws, the destruction of public property in and around the Capitol, and the ability of federal officials and civil servants to perform their legal duties. Yet, we again feel an obligation to hit the pause button, ever so briefly, to discuss continuing, permanent, and vital principles of free and democratic self-government. Here, we write, with most immediate relevance, to impeachment—albeit similar principles apply in the context of civil and criminal law as administered by Article III courts. 

Before the sun had set on the nation's capital, there were immediate calls for President Trump's impeachment, removal, and future disqualification. The timing of the process was not particularly important. With about two weeks until President-Elect Biden's inauguration, it is not likely that a fair investigation and trial can be held with an eye on removal from office. Even the Radical Republicans gave Andrew Johnson time to put on a defense. (The trial began on March 4 and concluded on May 16, 1868). Additionally, in the current rush to impeach Trump, the specifics of the articles of impeachment do not appear to be very important to some supporters of a renewed impeachment effort. Incitement! Sedition! Treason! When all else fails, nebulous allegations relating to "corruption" and "abuse of office" will suffice for some would-be impeachers. The details can be ironed out later. 

Traditionally, the most straightforward path to impeachment would focus on an issue in which the facts were not in dispute. In 2019, President Trump's decision to release the transcript of his telephone call with the Ukrainian President made the impeachment process much smoother. There were few disputes about material facts. We know what he said, and when he said it. The House's primary duty was to decide whether those statements amounted to an impeachable offense. For that reason, and others, Speaker Pelosi and the prior House's leadership focused on that specific issue in the adopted articles of impeachment. They excluded other draft articles which raised novel and complex questions of first impression, which then and even now continue to be litigated in the federal courts. The House did not adopt articles of impeachment focusing on obstruction of justice based on the Mueller Report or on the Emoluments Clauses.

Similar circumstances are present with a possible impeachment article relating to incitement: all of Trump's statements are public. We know what he said, and when he said it. This House would merely have to decide whether his statements were impeachable.

We start with established free speech doctrine. Under current Supreme Court doctrine, Brandenburg v. Ohio (1969) is the governing standard. The government can punish speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The key word is "imminent." Encouraging people to commit some act of violence at some time in the future would not be imminent. "Imminent" means right now. And the incited activity must be "lawless." Encouraging people to engage in lawful activity is not incitement.

In this post, we consider only two factual allegations with respect to incitement. First, on December 19, President Trump tweeted, "Be There. Will be wild!" Second, on the morning of January 6, Trump gave a speech on the White House Ellipse that stretched more than an hour.

Given the requirement of imminence, our view is that Trump's December 19 tweet, about an event more than two weeks away, would not be sufficient under Brandenburg's incitement standard. The speech he gave the morning of January 6 on the White House Ellipse, however, presents a closer call. You can find the full transcript of his remarks here. We think the final two minutes of the speech are the most salient portions for an incitement analysis, starting at 1:35:00. 

Our brightest days are before us, our greatest achievements still wait. I think one of our great achievements will be election security because nobody until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9:00 in the evening and say, "I want to thank you very much," and they go off to some other life, but I said, "Something's wrong here. Something's really wrong. Can't have happened." And we fight. We fight like Hell and if you don't fight like Hell, you're not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans for our movement, for our children and for our beloved country and I say this, despite all that's happened, the best is yet to come. So we're going to, we're going to walk down Pennsylvania Avenue, I love Pennsylvania Avenue, and we're going to the Capitol and we're going to try and give… The Democrats are hopeless. They're never voting for anything, not even one vote. But we're going to try and give our Republicans, the weak ones, because the strong ones don't need any of our help, we're going to try and give them the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue. I want to thank you all. God bless you and God bless America. Thank you all for being here, this is incredible. Thank you very much. Thank you.

Earlier in the speech, Trump shed more light on the "walking" point. He said:

After this, we're going to walk down and I'll be there with you. [Eds. Trump did not ultimately walk with them]. We're going to walk down. We're going to walk down any one you want, but I think right here. [Eds. We think he meant Pennsylvania Avenue]. We're going walk down to the Capitol, and we're going to cheer on our brave senators, and congressmen and women. We're probably not going to be cheering so much for some of them because you'll never take back our country with weakness. You have to show strength, and you have to be strong.

Trump makes two relevant points. First, he said, "And we fight. We fight like Hell and if you don't fight like Hell, you're not going to have a country anymore." The better view, all things considered, is that Trump was doing no more than telling his supporters to engage in constitutionally protected speech, and not telling his supporters to physically "fight." Here, the "fight" referred to a legal, or political process, to obtain "election security." His earlier reference to "cheering" on the "brave Senators" reinforces this reading. We don't think any court or other neutral adjudicator could fairly construe "fight" to mean a physical brawl. 

Many press accounts have taken the "fight like hell" comment out of context. For example, a reporter asked Michael Sherwin, the acting U.S. Attorney for the District of Columbia whether President Trump, "who had urged the crowd to 'fight like hell,' before the rioting began," could be criminally charged. Sherwin replied, "We are looking at all actors here, and anyone that had a role, if the evidence fits the element of a crime, they're going to be charged." The "fight like hell" comment cannot from the basis of an incitement charge. The more difficult comment is Trump's urging people to walk to the Capitol.

Trump said "we're going to walk down Pennsylvania Avenue." He continued: "we're going to the Capitol and we're going to try and give . . . our Republicans . . . the kind of pride and boldness that they need to take back our country. So let's walk down Pennsylvania Avenue." (We used ellipses to omit Trump's verbal frolics and detours between tangents.) Here, the President was urging his constituents to march from the White House to the Capitol to protest the proceedings. The phrase "pride and boldness" could be interpreted as a call for physical boldness, but we are skeptical. The better view is that Trump was urging people to protest against "weak" Republicans who would not support objections to the certification of certain state's electoral vote. Indeed, Trump said that "Democrats are hopeless" and the people should not waste time on them. 

Lawyers, and even judges, often misread Trump's speeches. But the task of fairly parsing a politician's speech, including a Trump speech, is not novel. It is traditional. Blackman engaged in such a parsing of Trump's remarks prior to his signing Travel Ban 1.0. Many people, including Justice Sotomayor, took out of context Trump's remark, "We all know what that means." Facts matter when prosecuting or removing a President—even one who has otherwise failed to reach the traditional aspirational norms of high office. 

Do these remarks meet the Brandenburg standard? Blackman's co-blogger, Professor Eugene Volokh, suggests that the answer is no.

A friend asked me whether Trump's speech yesterday could be punished as criminal incitement of the appalling Capitol riot.

I doubt it, at least as I read what Trump was saying. Under Brandenburg v. Ohio, even "advocacy of the use of force or of law violation" can't be punished unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Saying things that foreseeably move some audience members to act illegally isn't enough. Speaking recklessly isn't enough. The Court was well aware that speech supporting many movements—left, right, or otherwise—that merely moves the majority to political action may also lead a minority of the movement to rioting or worse. It deliberately created a speech-protective test that was very hard to satisfy.

And that test of course applies equally to all speakers, politicians or otherwise. If an ordinary citizen said what Trump had said, it seems to me very hard to see how prosecutors can show beyond a reasonable doubt that he was intentionally promoting a riot (see, e.g., Hess v. Indiana), or even intentionally promoting trespassing.

Trump first urged people to "walk down Pennsylvania Avenue." And Trump later said "we're going to the Capitol." But, Trump stopped short of urging people to "walk into the Capitol," let alone "break into the Capitol." Also, according to Google maps, the White House Ellipse is 1.5 miles from the Capitol. That walk would take about 30 minutes at a usual pace. We suspect a throng of marchers would take somewhat longer. There may be a cooling-off period that would weaken the incitement claim.

Professor Howard Wasserman reached a similar conclusion.

The Supreme Court's caselaw is very protective of free speech. If Trump's speech was protected by the First Amendment, he could not be prosecuted for criminal incitement—regardless of whether he is President. Presidents do not surrender their free speech rights. This analysis should resolve the question faced by the U.S. Attorney for the District of Columbia.

But Trump could face a trial in another forum: Congress. Could he be impeached by the House and removed from office by the Senate on the grounds of criminal incitement? We have already explained that the President's conduct does not amount to criminal incitement. However, we assume that the impeachment process is not strictly limited to crimes defined in the U.S. Code. But even if the President can be lawfully impeached for noncrimes, there is a separate, difficult question: Can the President be impeached for engaging in speech protected by the Constitution as established by the courts?

As a threshold matter, we do not think that Congress, sitting as a court of impeachment, is bound by the Supreme Court in the way the inferior courts are bound by Supreme Court caselaw. Each Representative and Senator takes an oath to the Constitution. They could independently decide that Brandenburg is an incorrect exposition of the Constitution. If members were to determine that the Brandenburg standard was wrong, or that Brandenburg's First Amendment protections do not apply to public officials generally or to the presidency in particular, they could vote on that basis. But we are skeptical that even a handful of members of Congress would be willing to openly repudiate the Supreme Court's long-established free speech jurisprudence in this manner. The more likely path is that members would simply say that the First Amendment doesn't squarely apply to the impeachment process. 

The argument that otherwise-established constitutional doctrine does not extend to the impeachment process is not outlandish. It is not our position. But in 2020, many people argued that the Due Process Clause did not apply to President Trump's impeachment trial. Under this reading, a summary trial that departs from judicially established Due Process Clause protections, in which the President is convicted for engaging in free speech, and does not have any time to put on a defense, would be constitutionally permissible. We disagreed then, and we continue to disagree now. 

We have consistently taken the position that the Constitution imposes limits on the impeachment process. In 2017, Blackman wrote about this precise issue with respect to the First Amendment:

Though framed in terms of Congress's lawmaking powers, the First Amendment is understood to apply to all facets of state action in all three branches of government. . . . The prohibition against "abridging the freedom of speech" imposes a negative restriction on all of Congress's authority, and not just its lawmaking authority. The president could not be removed from office for engaging in speech that is otherwise protected by the First Amendment.

For example, [Ben] Wittes contends that the president could be impeached if he "showed up at the State of the Union, announced that his contempt for Congress knew no bounds and proceeded to scream obscenities for an hour in Ancient Greek." This hypothetical is not dissimilar to the tenth article of impeachment lodged against President Johnson, which charged him with "attempt[ing] to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States … with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces." (This is an accurate description of @RealDonaldTrump.)

As history recounts, Johnson was acquitted on this charge—as he should have been. Of course, a vote to impeach or remove a president is not subject to judicial review, but the oath that members of Congress take to the Constitution should and does mean something: They should not take actions that contravene the Constitution, including the Bill of Rights. They could no more punish the president for engaging in unpopular speech by passing a statute, then by removing him from office for doing so. Indeed, of all places—the president's constitutionally delegated responsibility for assessing the "state of the union" would call for his candid opinion about current events. Highly inappropriate and misplaced? For sure. High crime and misdemeanor? No way.

A speech by the President outside the White House would stand in a similar position as a speech by the President in the Capitol. If Brandenburg is the governing standard, then, on the facts, as we understand them, Trump cannot be impeached on an incitement theory. The First Amendment would prohibit those articles.

In 2017, Blackman offered another example to illustrate this dynamic based on the Constitution's Religious Test Clause. That clause provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." This clause applies to all appointed and elected federal officials. If the Constitution does not restrict the impeachment process, then Congress could impeach the President for adhering to an unpopular religion.

Even if Congress were to enact a religious test by statute, Congress could not impeach and remove a federal official, including a President, for violating such a test. Our point is not that the Religious Test Clause is uniquely important. Rather, this constitutional provision, like others that constrain federal power, extends to the impeachment context. 

These illustrations demonstrate the serious gravamen of the problems that would regularly arise if Congress were to adopt the view that the Constitution does not place limitations on the impeachment process. 

Some might think that Trump's statements could be pigeonholed into a more nebulous "corruption" or "abuse of power" theory of impeachment. But it is irrelevant how the allegations are reframed or titled. If Trump's speech is protected by the First Amendment, Congress cannot impeach him for that conduct. The label is irrelevant. 

In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right. We should pause before setting a precedent where the President is impeached, removed, sued, or criminally tried for speech urging political action by supporters or by other third parties, unless such speech is clearly not protected by the Constitution. 

Perhaps other articles of impeachment may be available based on Trump's conduct. There is no need to rush to conclude proceedings in the next two weeks. We think that federal officials, including presidents, are subject to impeachment, even after their term in office concludes. And an impeached, tried, and convicted federal officer or official is also subject to disqualification by the Senate. But, in our view, the Impeachment Disqualification Clause only bars such a defendant from holding appointed federal positions. The Senate has no power to disqualify a defendant from holding elected federal positions, such as the presidency.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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  1. What an immature C grade 1L crim law analysis, by a Koch Bros. scumbag lawyer.

    1. That you think that says more about you than him.

      This article is a great analysis.

      1. A good analysis provides all sides of a subject. Even advocacy in court requires addressing adverse legal and factual points. This is not just an intellectual criticism. It is mandated by a Rule of Coduct, by lawyer ethics.

    2. Agreed. Other than the very specific example of the “no religious test” part of the Constitution, they don’t identify any other limits on the power of impeachment in the text of the Constitution. And the Supreme Court decided it was not capable of reviewing the impeachment process because of Congress’s ability to set its own rules of operation. (One of the linked pieces by the same authors, at WaPo, also claims that the President could also be a Congressman, which is a novel and untested theory.)

  2. Remember the Hong Kong Pro Democracy movement take over of Parliament. Remember the Chinese crushing of this movement by the big tech surveillance state of the Chinese Communist Party.

    Same thing is hapoening in the USA.

    1. The USA’s is an Anti Democracy movement

      1. Freedom is a masking ideology it seems. The US oligarchs run as tight a ship as the Chinese Communist Party, or the Castro Bros. in Cuba.

  3. the First Amendment is understood to apply to all facets of state action towards people who are not its agents


    In any case, lex specialis derogat legi generali. (Although I agree that it would be good if the amendments to the US Constitution would be more precise about what it is that they’re amending. But the US Constitution is generally quite short, meaning that most of the detail is left to be decided by the courts and, as the case may be, the other branches of government, through case law and established practice.)

    1. But preventing him from holding any other Federal office for life is a state action toward him as an individual as he would no longer be an agent of the state at that point, having already been removed from office.

      Maybe that’s why they didn’t do that to Alcee Hastings, now Congressman.

      1. That’s not the relevant question. The relevant question is whether he’s punished for his speech as a private citizen, or for his speech while president. The nature of the punishment isn’t relevant for 1st amendment purposes, as long as it exists.

        1. Can you say “bill of attainder”?

          You can not strip a citizen of his Constitutional rights because of his *prior* public office.

          1. I can, but I don’t see how the bill of attainder clause limits the impeachment clause that is in the same constitution. All impeachments are attainders.

            And yes, you can strip a citizen of his right to hold elected office. It says so right there in the constitution. There’s nothing backward-looking about that, it’s a forward-looking intervention.

            1. But you can’t deny him his civil rights while doing so. It also says that in the same document.

              1. Again, rules about how the state is required to behave towards its own citizens and other individuals subject to its jurisdiction don’t necessarily apply to the state’s control of its own employees/agents.

                But I see no reason why you’d want to hold an impeachment trial without due process. Then again, the amount of process that is due can vary depending on the circumstances. In any event, it’s not the question we were discussing, which was about whether the president can be impeached for protected speech.

                1. True historically courts have always shied away from ruling on any impeachment matters.

                  The way I view impeachment is more like a civil matter than criminal punishment. Which means the due process is lessened. Second the same can be said for expulsion from congress or a refusal to sit as a congressman/senator. Neither of them has ever required an actual crime.

        2. It’s a moot question. Congress is on vacation until the inauguration, and they are unlikely to bring it back in session impeach and convict Trump before the clock runs out.

          I suppose it’s possible to the might to decide to try an ex post facto impeachment, but it doubt that would succeed either, at least not in the Senate.

          1. The clock does not run out on disqualification to hold future federal office.

  4. “If Trump’s speech is protected by the First Amendment, then incitement cannot be grounds for impeachment. …”

    That seems to be a ridiculous premise. Imagine that President Hillary (or Trump, or Biden, or Rubio, et al) gives the following speech, at the State of the Union:

    “My fellow Americans. I have now been president for one year. I knew I disliked this country before. But now, after seeing you all from the perspective of your leader, I think it’s fair to say that I now despise America. I hate it, I hate you all, and I cannot wait until I see America destroyed. To this end, withing the following 6 months, my goal is to do all the following: (1) Give Putin all the nuclear launch codes at our next summit, 7 months from now. (2) Work to amend the Constitution, removing the First Amendment freedom of religion and any other constitutional protects, so that we can put all Christians into gas chambers. And after that, all the Jews that Hitler sadly missed. (3) Amend the Constitution, so that the govt can go into your homes without warrants and take all your guns. (4) Pass a federal law giving abortion on demand. (5) Adopt the NAMBLA goal of legalizing sex with children of any ago. (6) Constitutional amendment legalizing rape. (7) Provide to the Taliban all of our troop movements. (8) Print out $1,000 bills and give each person a billion dollars in new currency. [etc etc etc.”

    So, the president gives this speech. The next day, he confirms that he was not joking, was not drunk, was not under duress, etc…nope, he really wants America destroyed in the near future. And, to demonstrate this, he repeats much the same speech several times over the next few weeks.

    Josh, are you *really* saying that Congress could not move to impeach him? Everything President X just said was obviously constitutionally protected. Is that really the end of the analysis in your estimation?

    Gotta say; I think you’d be in the minority, if so.

    1. Josh is really saying, as always, “Hey, look at me.”

      The president has declassification power. Tomorrow he could tweet, “Here are the nuclear launch codes,” or “Here’s the location and identity of all our secret CIA agents and facilities around the world.” That would be constitutionally protected. Does anyone except the really bad legal analysts Josh Blackman and Seth Tillman (“Here are ten weird tricks for misinterpreting the constitution; number 7 will astonish you”) think that this wouldn’t be grounds for impeachment?

      1. I go back to what I was saying during the impeachment debate. An impeachable offense is what Ford said it is- it’s whatever Congress says it is.

        Every impeachment, both sides hire a both of lawyers to cosplay (at huge billing rates) about how impeachment is legally compelled/legally prohibited. That’s irrelevant. There are many constitutionally protected things that Congress can impeach for (as you point out), and many things that many people might consider to be a “high crime” where Congress can make the call that it’s not worth doing.

        Imagine if during the middle of WW2, FDR had been caught doing committing some horrible financial crime. Even looking beyond the fact that he had big majorities in Congress, it is entirely possible that the public might have felt “we are in the middle of a war, we don’t want him removed”. Putting the Congress in charge of impeachment was a deliberate choice by the framers to ensure that sort of calculation would be made.

        Lawyers and law professors need to grow up about this issue. Congressmen and Senators do not give 2 craps about what we think a “high crime or misdemeanor” is, other than to cite us when they have already made the political call. If no law professor ever writes one more word about what is an impeachable offense, both the country and the legal profession would benefit. Let politicians handle it.

        1. “I go back to what I was saying during the impeachment debate. An impeachable offense is what Ford said it is- it’s whatever Congress says it is.”

          Technically, an impeachable offense is whatever the Senate says it is, since the Senate is the side that holds the power to actually remove the President.

          I measure success for an impeachment attempt as conviction/removal by the Senate (anything else is failure). To date there have been 3 attempts to impeach a US President, all three failed.

          1. It’s both, and that’s really what Ford meant (although he said the House). The point is, it’s a political question (in both the common and legal senses of the term).

      2. The way I see Blackmans analysis is usually through a lens of extremes either they are prohibited from doing it or are allowed to do it no matter what.

        I think that’s a bad way to interpret the law.

        Like pardoning, any person can look at that and come to the conclusion that the founding fathers would never think it was ok for a president to pardon himself. Yet Blackman argues since there are no restrictions in the constitution he can pardon himself.

    2. 1: The President does not amend the Constitution. He can advocate amending it, but it is amended via one of two rather complex procedures, both of which involve the states. And even if Congress proposes an amendment, that’s not a done deal (e.g. the ERA).

      2: While treason is well defined, there are other statutes regarding our national defense that likely would be violated — although Obama came close to doing this with Iran.

      3: He could propose a NAMBLA law, but it would (a) be up to Congress to pass it and then (b) SCOTUS to rule that it was somehow authorized under an enumerated power because the statutory rape laws are all state laws. BUT Obama did something close to this when he removed sodomy from the UCMJ.

      He could propose repeal of the 1st, 4th, 5th, 8th, 14th (and probably a few more) Amendments for the purpose of murdering all American Jews, but it woulds be up to Congress and the States to actually do it. Now if he ignored the Constitution (as Obama did), that’d be something else entirely.

      Even a criminal’s confession has First Amendment protections — the consequences of the admissions arent but he can’t be punished for the speech per se.

      1. And the President can reveal national secrets — JFK did with the top-secret U2 pictures of the Russian missiles in Cuba.

        Reagan did likewise with GPS after the Korean airliner was shot down — GPS used to be a classified military technology but Reagan decided to give it to the public for the common good as the KAL plane was off course.

        There’s got to be other examples, but these two come to immediate mind.

        1. Trump tweeted a classified satellite photo to goad the Iranians. And he shared intel from the Israelis with the Russians, apparently to show off how important he was.

    3. I would think that it’s quite improper and undesirable to impeach the president for advocating a change in the law or in the constitution. But then I also thought it was wrong for the Dutch court to ban the paedophile party, so what do I know.

      Otherwise, some of the things you mention aren’t protected speech. Whatever speech is involved in treason isn’t protected, because that obviously goes in with obscenity, defamation, etc. as established categories of exceptions.

      1. Treason consists ONLY of “levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.”

        Dutch law doesn’t apply here.

        1. You don’t think “(7) Provide to the Taliban all of our troop movements” counts as giving aid and comfort to the enemy?

          1. Did Congress formally declare war on the Taliban?

            That’s why Jefferson had to go with “Alien & Sedition” because there hadn’t (yet) been a formal declaration of war.

            You could get her for “failing to see that the laws be faithfully executed” (i.e. the GWOT law) but not treason.

            1. It was Adams and the Federalists who passed the Alien & Sedition Act, not Jefferson.

              1. Correct, but Jefferson used it…

            2. FYI, declared wars have become vanishingly rare since the adoption of the UN Charter:

              The United States hasn’t declared war on anybody since 1942, which I’m sure might be a surprise to the Lebanese, Vietnamese, Laotians, Cambodians, Grenadans, Serbs, Afghanis, Iraqis, Syrians, and many others killed by the US army since then.

              1. I would personally prefer that only a declared war counts as a war, legally. Because I think Congress’ abdication of the War Power as well as the lies told around the world by regimes that go to war that what they are doing is not “war” are both absolute abominations.

                But it’s worth noting that under current law, there does not need to be a declared war to have an enemy, but there does have to be a state of armed conflict (and possibly between two warring states, rather than nonstate actors). Congress can override that, of course, and just declare someone an enemy. But absent an act of Congress, the Taliban would not be an “enemy” for purposes of the Treason Clause unless it was in an actual state of armed conflict with the United States.

                1. I’m pretty sure there’s still enough shooting going on in Afghanistan for there to be an actual state of armed conflict.

                  As for NIACs – Non-International Armed Conflicts – I’d be reluctant to accept an interpretation of the treason clause that would make it impossible to prosecute Confederate leaders for treason, even if in actual fact they weren’t.

            3. “That’s why Jefferson had to go with “Alien & Sedition” because there hadn’t (yet) been a formal declaration of war.”

              No, that’s not why treason has been largely replaced with a host of more specific criminal statutes.

              The big problem (and this is likely largely also what drove the Alien & Sedition act) is the burden of proof , also specified in the constitution.

              A conviction on treason requires either two eyewitnesses to the same overt act of treason (two witnesses to different overt acts won’t cut it) or confession in open court.

              The FBI can’t sweat a confession out of a treason suspect and then present the court with a written confession. The written confession won’t be admissible.

              1. It would be admissible, it would just not be sufficient.

                1. It’s not just insufficient, it’s irrelevant. Admitting it would taint the jury.

                  1. The constitution sets out the minimum evidence required for a treason conviction. It doesn’t say that’s the only evidence.

                    1. Yes it does say that’s the only evidence.

                      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.

                      No other evidence is relevant.

                    2. If you have the required two eye witnesses or a confession in open court, why would you need to admit other evidence?

                      On the other had if you don’t have the two eye witnesses or a confession in open court, it does not matter how much other evidence you have.

      2. I think the point of santamonica’s hypo is that the president is stating that a bunch of things should happen, and that he intends to do them at a future point. I doubt very much that any of that comes within treason or any other national defense statute, and it’s all protected by the First Amendment. At least, I can’t think of a reason why it wouldn’t be.

        I guess you could say “this shows that the President has abdicated his oath to defend the Constitution of the United States, so it’s impeachable,” but I don’t see how that takes it outside the First Amendment.

        1. Thanks for summarizing perfectly. That’s it exactly. If a president commits treason, then it becomes an easy (well, easier) case. I’m talking about what happens if a president is making beyond-the-pale future threats. Josh thinks that, because these are merely threats (true) and that these threats are clearly protected by the First Amendment (also true), that it’s the end of the analysis. “Protected Speech, therefore nothing impeachable here.” I think that’s wrong, profoundly wrong, and that’s why I gave my reductio ad absurdum example.

  5. As we saw earlier this year, there is no actual high crime or misdemeanor needed to impeach a POTUS. Only political will is needed. The ball is in Speaker Pelosi’s court.

    With 12 days to go, is there really enough time here to a) draft the articles of impeachment, b) vote on them, c) send to the Senate, d) hold a trial, and e) render formal written judgment.

    Look, you are all very smart people. You know the answer. It is No.

    1. The answer to that is actually, “Yes”, but it involves kangaroos.

      1. No, it involves making a martyr and that is a very dangerous thing.
        They’ve stolen an election and now they wish to twist the knife and if they do, they truly will get blood on the street, and in copious quantities.

        They’ve been living in a bubble for too long, they think that their echo chamber is reality and it isn’t. Joe Sixpack is pissed and what you saw on Wednesday, notwithstanding Antifa exacerbation, was the thin veneer of society starting to crumble.

        A vindictive pro-forma impeachment would be incendiary.

    2. The end of a presidential term does not make impeachment moot. He remains subject, upon conviction, to disqualification from holding future federal office.

  6. One of the reasons I follow Volokh’s Conspiracy so eagerly is to remind me time and again that there is at times a chasm between what is politically desirable, even urgent, and what is legal. Blackman and Tilman not only do that, they also do not shrink from discussing the implications of impeachment not necessarily being a strictly legal proceeding. Their message here again is “beware what you wish for.” Kudos to the “Koch Bros scumbag lawyer!”
    I’d very much like to see a similar discussion of the application of the 25th Amendment. I wonder if contrary to the impeachment this type of removal from office might be legal but on balance, politically dangerous. As a non-citizen and non-resident I think there is a considerable probability that 45 might start a “little war” to burnish his reputation – which might affect us lesser beings equally, if not more so as it does you. Declaring him unfit OTH would set a highly dangerous precedent which if I were a US citizen, I would abhor to see.

    1. He might get a “little war” and not by his choice. Iran is making troubling threats right now – and those folks truly are crazy.

      1. The authorities in Iran have fewer constitutional constraints, but over the last four years I’ve seen little evidence that they are crazier than Trump. Broadly speaking, Iranian policy is quite coherent.

        1. Trump isn’t crazy. I mean, he’s about as narcissistic as anybody in politics, but maybe not even as much of a sociopath as your average D.C. politician.

          Trump has been pretty coherent, he just has a very high reluctance to admit defeat. At this point I’d say marginally too high, I figured he realistically should have conceded in mid December.

          He certainly isn’t crazy enough to have thought that staging a break in at the Capitol building during the vote on the EC was going to help him. That was so ideally calculated to end any chance he had that it would be more reasonable to suspect it was orchestrated by his opponents.

          1. Out of curiosity, do you notice that just about every sentence in that comment contradicts the one before?

            “He’s not crazy… he’s narcissistic”
            “He’s coherent… he just can’t admit defeat”
            “He’s coherent… he just did something ideally calculated to end any chance he had”

            1. That’s not a contradiction.
              1) Narcissism is a ‘personality disorder’, but it’s common enough in important people that it falls under the, “If most politicians are like that, we can’t call it ‘crazy’.” rule.
              2) Not admitting defeat isn’t incoherent, it’s a way of being coherent. “Incoherent” would imply that you couldn’t tell if he was admitting defeat or not; Coherency isn’t about your beliefs and actions, it’s about whether they’re internally consistent.
              3) It’s not something HE did.

              1. Trump believes absurd conspiracy theories…so it isn’t about admitting defeat it’s about believing Cruz’ father was involved in the JFK assassination. Btw, that is also why Trump’s belief in Birtherism isn’t racist because he believes many absurd conspiracy theories.

            2. Out of curiosity, do you notice that just about every sentence in that comment contradicts the one before?

              “He’s not crazy… he’s narcissistic”
              “He’s coherent… he just can’t admit defeat”
              “He’s coherent… he just did something ideally calculated to end any chance he had”

              Your command of English sucks. None of those phrases contradict the other that they’re paired with.

          2. Trump is textbook ADHD but that’s not crazy.

            I notice that the Capitol Hill Police Chief has resigned, but it was the Mayor who said that she did NOT want “a military presence” and ONLY wanted the National Guard at METRO stations and directing traffic.

            And then when the bleep hit the fan, there was the very real question of who had the authority to send the Guard into the Capitol. This is the problem with having a half dozen different police departments with no unified chain of command, along with both the House and Senate being independent fiefdoms.


            1. If the building was hit by lightning and on fire, who would have the authority to send in firefighters? If it were a *bad* fire (and lightning strikes can be), who would have the authority to request mutual aid from the adjacent communities in Virginia?

              I’m not even sure that *that* has been worked out….

            2. And what’s not being mentioned is that the Mayor’s primary concern was keeping protesters out of Black Lives Matter plaza.

              What right she even had to do that is beyond me, but WHY waste all your resources doing that?!?!?

              1. Because everybody was operating on the assumption that, this being a right-wing protest, the only danger was that the cleaning crew wouldn’t have anything to do the next day because the protesters would leave the Mall cleaner than when they came.

                1. Yes, I know, they’re all very fine people.

                  1. Well, that IS the usual result of a Republican rally, you know.

                    Even Charlottesville would have been peaceful, if the local government hadn’t deliberately driven the protesters and the Antifa together in order to create violence, in order to have an excuse for shutting the protest down.

                  2. I’m sure a lot of very awful people think they have anything remotely like a point when they deploy that phrase. They never do. It’s an intentional distortion of a quote taken out of context, and using it says far more about the speaker than about the subject.

                    1. It was my pithy way of observing that Brett praising a bunch of neo-Nazi’s for not leaving behind trash when they protest is kind of like praising Mussolini for making the trains run on time.

                      But yes, the better response would have been to point out that the mob left a complete mess on Wednesday:

                    2. Well, then right wing rallies have changed since my days of attending them.

                    3. But yes, the better response would have been to point out that the mob left a complete mess on Wednesday

                      It’s kind of hard to tidy up after yourself when you have the National Guard tossing tear gas and running you out of the area. In that regard, this event was completely different from any other conservative gathering in recent memory. Contrast that with the CHOP, the Occupy events and every “mostly peaceful” riot/burning that antifa/BLM/whoever participated in over the past year. Oh, and don’t forget the rioting (smashing store/car windows and the like) immediately after Trump’s election.

                    4. Martinned knows he’s lying, about both Charlottesville and about nazis.

                      I mean, Nazis and their ilk – like Richard Spencer – explicitly endorsed Biden, because Trump was too friendly to Israel and the Jews.
                      It takes a particularly dishonest or stupid type of person to claim that the person opposed by the Nazis is actually the Nazi-lover.

                  3. You have proof they were neo-nazis? Some qanon shirts, I saw a confederate flag -whether it was intended to offend, as a protest symbol, or as a separatist/racist symbol, one would have to ask the man carrying it. Your bias and demonizing, smearing anybody who doesn’t adhere to your beliefs doesn’t serve you well.

                    1. As a result of Wednesday’s events, I have learned what 6MWE stands for. I rest my case.

                    2. Let’s all stop talking to the out-and-out traitors around here, eh? Who’s with me?

                    3. By which I mean Hank, Brett, and the rest of the sedition is cool crew.

                    4. “As a result of Wednesday’s events, I have learned what 6MWE stands for. I rest my case.”

                      Why does Israel consider Trump the most Jewish-friendly President — ever?

                    5. @Ed: Because just like everyone else who understands English, they’ve worked out that Trump is vulnerable to flattery.

            3. “And then when the bleep hit the fan, there was the very real question of who had the authority to send the Guard into the Capitol.”

              No, we cleared that up yesterday when you made an ass of yourself. Remember when I posted the text from the D.C. National Guard webpage citing that they answer to the President, and you decided that even a primary source wasn’t good enough for you to believe?

              Do I need to embarrass you again?

              1. Clearly you didn’t read the newspaper article cited above, with real quotes from real people showing that you are wrong.

                1. I’m sorry that reality doesn’t conform to your desires.

                  You’re still wrong, just like you were yesterday. One would think that you’d be used to it by now and have the testicular fortitude to acknowledge it.


                  You’re welcome for the education. Next time don’t open your mouth unless you’re right.

          3. That was so ideally calculated to end any chance he had that it would be more reasonable to suspect it was orchestrated by his opponents.

            This is utterly insane. What world do you live in?

            Do you expect anyone to take you seriously when you insist on writing this kind of crap?

            You’re deep into Dr. Ed territory, and sinking.

        2. The authorities in Iran are scared — the Arab world is realizing while they don’t like Jews, Israel is not a threat to them, but Iran is. And Israel is quietly stitching together a network of states (starting with Saudi Arabia) in opposition to Iran.

          Remember that the Iranians are *not* Arabs — they are Persians — and in a race-conscious area like the Middle East, that’s important.

          1. They are also Shi’a, not Sunni, which is even more important. (Particularly in Bahrain.)

            But are you suggesting that we should humour a bunch of racists in their disputes with another bunch of racists?

            1. When one group of racists want to kill us?
              Yea, I’m inclined to humor the ones who don’t.

              1. The only Middle Eastern people who’ve tried to kill Americans in recent decades were Saudis.

              2. I’m not sure how we swung to this topic, but three points :

                (1) The real question is what’s the priority of U.S. policy? During Obama’s presidency it was containing Iran’s development of nuclear weapons, which was then considered an existential threat against our country. To the limited extent Trump had a coherent policy, it’s been to join a regional alliance with Israel & the Saudis against Iran’s power in the region. Iran’s nuclear bomb program barely exists as an issue any more; since Trump’s actions practically forced the Iranians to resume bomb development & since Trump had ZERO plan or strategies in response, the default assumption has become containing a future nuclear Iran.

                (2) Trump’s strategy has benefits. All of the treaties between regional countries and Israeli resulted from the coalition against Iran, and that country was a toxic presence in the region even with its A-bomb program shut down by the Obama accord.

                (3) To forestall the inevitable bulls**t response from Right-Wing world, Obama’s pact had shut Iran’s program down, Trump’s White House certified multiple times Iran was in full compliance with the accord.

                (4) Personally, I find the Mullah’s atomic weapons to be more of a U.S. concern than the regional anxieties of the Saudis and Israelis. The former I find almost as toxic and loathsome as the Iranians, particularly since they’ve done more than anyone else to create a network of radical & violent Islam worldwide.

                1. grb…Iran’s bomb-making activities never stopped. Iran made a fool out of POTUS Obama (which frankly pisses me off, as an American). We know this now from the 2018 exposure of Iran’s archival records, helpfully provided to the world by the Israelis.

                  Senator Cotton made the most relevant point during the leadup to JCPOA. He explicitly issued a statement to Iran telling them that absent ratification by the Senate, the JCPOA is not a legally binding agreement on the US.

                  I truly wish POTUS Obama had submitted the treaty for ratification. But there is only so much time in office to get things done, and sometimes you have to make trade-offs you’d rather not make. I think this is what happened to POTUS Obama. He agreed to things in JCPOA that he otherwise never would have, had he had more time. But time was running out, and I believe he felt that something was better than nothing. Tactically, that makes sense; strategically, it was a bad call.

                  1. I’m sorry, Commenter_XY, but your response is unfactual nonsense. Let’s deal with your most embarrassing mistake first : The archive records the Israelis daringly stole couldn’t have proven Iran’s bomb-making activities never stopped, because they all date back before 2003 – at least twelve years before Obama’s deal came into existence.

                    Oops. I found Tenet to be a marginally enjoyable movie, but don’t think the Mullahs have developed time travel just yet. Now the reason you just fell flat on your face in so spectacularly a fashion is because your handlers fed you bullshit. I suggest you get angry at whatever Right-wing source treated you with such contempt, but that’s your call.

                    Here’s another fact : When conservatives began campaigning to overturn Obama’s accord, they did without alleging cheating. Objections included : Iran’s missile program, its buildup of conventional forces, its toxic mischief in the region, etc. You had to go WAY down the evolutionary ladder of right-wing commentary Stupid before “cheating” suddenly appears as a fact-free reflexual “reason”. Plenty of people said Obama’s accord didn’t prevent the Iranians from resuming bomb development after the deal expired; no one with a reputation of honesty to preserve claimed cheating.

                    Another fact : As per my reference above, Congress passed a law requiring the White House to certify whether Iran was in compliance (bi-yearly I think). Trump’s own officials did so multiple times, reporting to Congress that Iran’s nuclear bomb program was completely shut down per the deal. I guess you’re gonna have to expanded your fact-free zinger to say “Iran made a fool out of POTUS Trump”

                    Please let me know if that “frankly pisses (you) off, as an American”. Finally, some help for you on the archive raid :


                    1. The archives, and what they contain are a matter of public record. The archival data extend through 2017. They clearly tell the story of continued enrichment, overproduction of ‘heavy water’ and missile development. You are wrong. Very dangerously so.

                    2. Would you please read the story grb links to?

                      It completely refutes everything you say. You’re being ridiculous.

                    3. bernard11…Times of Israel, and Israel Hayom report differently. If I have to pick between WaPo and them as my primary information source, I choose them.

                    4. XY, can you share your sources so we can compare. This topic is one that I am never able to make an opinion on, since every source has a different telling of the facts.

                    5. Commenter_XY : On this Archive thing, you’ve been treated like a fool. You’re one hundred percent wrong and that’s what you’ll find with a little honest research. Here’s a link to a 36 page scholarly study on what was found by the Israeli raid. The money quote is on page 29 of 36 in the .pdf, and talks about the Iranian program both before and after the 2003 stop-work order :

                      “The archive makes clear that prior to the 2003 order, the Iranian government’s strategic intent was to manufacture nuclear weapons and carry out an underground nuclear test. But what was their intent after that 2003 order, now almost 16 years ago? The documents in the archive say little on that subject and largely end after 2006”

                      This study reviews every single aspect of Iran’s nuclear program. It mentions nothing remotely close to your claims. Why not make an effort to find whether you’ve being lied to? I can guarantee you have.


                2. “practically forced the Iranians to resume bomb development”

                  Yes, with the practical gun he held to their practical head while practically demanding that they try to build a nuke to use against Those People. Especially after the mullahs were repeatedly, reportedly, in “full compliance” with developing their nukes in secret rather than where their facilities could be bombed again.

                  1. “practically forced the Iranians to resume bomb development”

                    Well, yeah. Iran made a deal to close down nuclear sites, stop virtually all of their uranium enrichment, ship their existing stockpile of enriched uranium out of the country to Russia, and submit to regular international inspections. Every potential aspect of atomic weapon developed was given proscribed limits Iran had to obey. Iran followed that deal well into the Trump Administration. Trump’s own people certified to Congress Iran was in full compliance. They did so on multiple occasions.

                    In return, economic sanctions were lifted on Iran. Now when Trump sabotaged the agreement, reimposed sanctions, and pressured the Europeans to restrict their trade, what did you think would happen? The answer is pretty obvious : The U.S. broke the deal so the deal no longer holds. Iran has slowly ramped their uranium enrichment back up in case the agreement can be salvaged, but it was clearly their only possible response to Trump’s blunder.

                3. I was as surprised as you how we got here, but I concede that in a way I invited the discussion. As one of those “weaklings” in Europe I welcomed the deal to which not only the much maligned Obama was party but so were and still are France, UK and Germany – even twice, as the EU as a whole formally joint the deal, too, as did Russia and China. And I welcome the US rejoining.
                  Whatever you think about Iran, though, starting a war because you need to move the attention away from a deep stain on the country’s and your legacy never is a good idea. If a war were justified, why not long ago, why now?
                  The man is not fit, and each day we are in danger. I’d have to read other bloggers’ opinion but justifying removal in a sound legal way and in the time that is left seems a tall order.

  7. Prepare for the coming attack, because the lynch mob does not mean to let legal analysis get in its way, and what they can’t refute they mean to silence.

    1. I’m hearing that Trump intends to start a 3rd Party.

      1. Well, that would be amusing, but the odds of it getting anywhere are pretty bad, given how rigged our political system is.

        1. OTOH, it would be a pretty effective threat to the GOP.

          1. Nah, Republicans would call that bluff. A real split in the Republican party would be the end of Rs winning elections for the next 10-30 years. Rs want to win elections just as much as Dems.

            The only way it could happen is if Trump had core values and those values represented a true philosophical split in the R party. I don’t think Trump has core values, other than being anti-immigration and anti-free speech (ie, he want it to be easier to sue people who say and write mean things about him). I genuinely think those are his core values–ones he’s held for decades.

            But while immigration *could* be enough of an issue to split the R party, I don’t think it actually is. I don’t think it comes remotely close to being such an issue. The only 2 issues that I think could tear apart the R party are abortion and guns. So, if Trump were adamantly anti-guns, or absolutely pro-abortion, then maybe his supporters would walk away from the R party. But of course, that does not describe present-day Trump at all.

            Republican politicians will look at this (a potential Trump split-off) with self-interest. While there were huge benefits (not being attacked during a R primary) to whoring their integrity while Trump has been president, I suspect that this benefit would disappear if they followed Trump to a 3rd party, since it would ensure future election losses.

  8. If posting or saying untrue, exaggerated, or misleading things with the purposeful intention of inciting people is a crime now than we should be locking up all of trump’s opponents along with him, and we have more than enough grounds by their behavior on this very incident alone. Having said that I really hope they do try impeachment 2.0.

    1. No, you really don’t = Having said that I really hope they do try impeachment 2.0.

      The country is bitterly divided. That would throw gasoline on the fire.

      1. Democrats and their street mobs have been throwing gasoline on fires since the summer, often literally. Why would they stop now that they’ve secured control of the entire federal government?

        1. Michael P….I try not to paint all of Team D with the same broad brush; I’ll be the first to admit I am not always successful. I have to believe that there is a significant proportion of Team D legislators who do not support what happened this summer (BLM, Antifa riots). As it happens, those same legislators probably represent closely divided districts. They may, or may not have been silent over the summer. But I do not think they’ll be anxious grandiose socialist legislation. Nor do I think they’ll be in a hurry to defund the police.

          POTUS-elect Biden has promised to do his part to mend and heal the divisions in our Republic. We should take him at his word, and assume he means what he says until he shows otherwise with actions. So while I am listening to what he says, and that is somewhat positive; I am watching what he actually does.

          1. …anxious to advance grandiose…

            Need more coffee

      2. You think the Dems don’t *want* to throw gasoline on the fire? They don’t care that half the country opposes them, as long as she can ensure that they are a permanent minority (though such measures as D.C. and Puerto Rican statement, lowering the voting age to 16, and opening the borders (and giving a path to citizenship–three years sounds like it should be enough) for any Third Worlder able to breathe). For all of Biden’s nice talk about being president of all the people, Nancy and her crowd want to make sure that Biden, Harris, and every other Democratic president until the end of time is the Republicans’ president the way that Andrew Jackson was president of the Five Civilized Tribes. With his “Open wider, clingers,” Rev. Artie is a little more obvious than Nancy, but not much.

  9. OK, say that Willard Mitt Romney had been elected in 2012 and then impeached/convicted of the offense of being a Morman.

    Could (would) SCOTUS reverse such a proceeding on the religious test grounds?

    If so, could (would) SCOTUS reverse a kangaroo kort impeachment on due process grounds? Due process has never been defined (except by SCOTUS itself) but clearly every American, including the hated Orangeman, is entitled to it.

    And even under the most restrictive interpretation of due process, a kangaroo kort proceeding doesn’t meet muster…

    1. The Supreme court would not reverse an impeachment. Period. It’s not a judicial matter, subject to their jurisdiction.

      They dismiss cases that are much less arguably “political” as non-judiciable all the time. This one would be an easy case.

    2. That’s an interesting one. I’m not sure what a Morman is (a cousin of a Merman?), but impeaching someone for being a Mormon may well be sufficiently absurd to move the dispute out of non-justiciable political question and into justiciability.

      I was thinking about this in the context of the 25th amendment. As best as I can tell from the other side of the ocean, Trump is not actually unable to perform his duties. Incapable, sure, but not more incapable than at any other point in the last 4 years. However, the usual remedy of the 25th amendment (a vote in Congress) doesn’t help him if the amendment is invoked today, because there isn’t enough time. So I wondered whether he would be able to get an injunction in court instead. Logically, whether the president is unable to perform his duties is a factual question, not a political one. So I can think of no reason why the courts would be unwilling to touch it, in a situation where there is no other remedy.

      1. They’d be unwilling to touch it because,

        1) The whole procedure is set in the Constitution, and doesn’t involve the judiciary AT ALL.

        2) Trump’s going to be out of office anyway in a bit over a week, so running out the clock would be trivially easy, and running out the clock is judicial instinct.

        3) The judiciary don’t want to piss off the elected branches too much.

        4) To the extent the courts are political, it’s an asymmetrical politics: The right-wing judges would be persuaded by point 1, the left wing judges wouldn’t care, but have it in for Trump.

        1. Brett’s 99.999% right (one minor correction – When the President of the United States is tried, the Chief Justice shall preside, so there is a very minor judicial influence).

          1. Yes, but Roberts insisted his role was entirely ministerial.

      2. I’m not sure what a Morman is (a cousin of a Merman?),

        A member of the Church of Jesus Christ of Latter Day Saints.

        Sometimes called Latter Day Saints, or LDS. Or Mormons.

        1. I recommend the stage show : The Book of Mormon for an honest and informative telling of the life of their prophet. Much better than the print version.

    3. “OK, say that Willard Mitt Romney had been elected in 2012 and then impeached/convicted of the offense of being a Morman or Morwoman.”

      It would be interesting to see what would happen if Romney had responded by saying, “Being a Mormon is not a high crime and misdemeanor, and the impeachment was barred by the religious test anyway, so I’m still President.”

      At that point I guess it would be a question of politics on the ground.

  10. Prof. Blackman, you were presented with an unusual free pass. You could have claimed that this was a bridge too far and disavowed your prior support for Trump: most people probably let you get away with it.

    Now, when you try to do it in a year, you’re going to have a harder time.

    1. Guilt by association now?

    2. Have you considered that people who disagree with you aren’t really looking for an excuse to start agreeing with you?

    3. I really don’t get comments like yours. I despise Trump now even more than I did before. I would be happy to see him removed post-haste. I have indicated here what I think is the best method (Pence offers a pardon in exchange for an immediate resignation, and Biden says, if you don’t take the deal, Merrick Garland will prosecute you for sedition.)

      But I don’t want the Constitution destroyed in the process of saving it, like the proverbial Vietnamese village. If what Trump did is protected by the First Amendment, then I would oppose impeachment on principle.

      In response to Professor Blackman, it is not protected for a simple reason. Trump tried to use a mob to overturn an election. It got out of control and blew up in his face, and his Vice-President and most Senators put their loyalty to the Constitution ahead of their loyalty to him. But his intention and actions were still seditious. That’s enough to remove him, if there were time (which there isn’t.)

      1. ” Trump tried to use a mob to overturn an election.”

        In an “assemble and petition the government for redress of grievances” sense. They weren’t a mob, they were a constitutionally protected lawful assembly. He wanted to influence the conduct of the Senators by having a crowd visible outside the building.

        The people who invaded the Capitol buildings were a mob, but they weren’t directed to do it by Trump. Unless you’ve got evidence to the contrary, in which case I suggest you hand it over to authorities so the prosecution can commence.

        1. Brett, the more I think about it, the more I blame the DC Mayor and whomever is in charge of the Capitol.

          When the protesters were outside the White House during the height of the Vietnam protests, Nixon had the 82nd Airborne “bunking in the basement” — they had troops inside the building in the event security was breached.

          Why the hell weren’t similar precautions made for this?

          I can’t get over the window washing platform that was left out to be used, and the Capitol Police officers videotaped removing barriers, opening doors and letting people into the building.

          But back to the mayor — she did not want the Guard where it could do any good and hence they were ordered not to go beyond a certain street. Well, they followed their orders…

          1. Who do you think has authority over the US armed forces and the DC national guard? Who do you think has the authority to deploy them?

            I’ll give you a hint: It isn’t the DC Mayor or the Capitol Police.

          2. No, the Pentagon turned down her requests. She has no independent ability to call out the Guard. Why the Pentagon turned her down, well, that’s going to warrant some investigation.

          3. When the protesters were outside the White House during the height of the Vietnam protests, Nixon had the 82nd Airborne “bunking in the basement” — they had troops inside the building in the event security was breached.

            Why the hell weren’t similar precautions made for this?

            Because nobody thought it would be necessary. This isn’t the kind of thing that happened at past Republican rallies. If violence broke out, it was the result of counterprotesters getting in Trumpsters’ faces until one side or the other started throwing punches. This time, however, there were people in the crowd who came prepared to take things a little farther, and to employ techniques more typical of Antifa.

            And for all it know, the people who started the real trouble (such as hitting cops with sticks and similar weapons) were, if not Antifa, then at least agents provocateurs, hoping to whip up and thus discredit the Trumpsters. Asking the question, Cui bono?, certainly makes that hypothesis plausible. There’s no way that anyone could seriously have thought that breaching the Capitol would lead to “reversing the election.” At best, it would have caused Congress to reassemble at a different location and complete the vote count. More likely, it would piss off people and cause some who were planning to participate in the ballot challenge (like Sen. Loeffler) to abandon those plans.

            1. There is no evidence, at all, for your claim that there were agent provocateurs involved in the seditious acts committed by those at the Trump rallies Wednesday.

              There is, however, a plethora of evidence that those who invaded the Capitol were Trump supporters. This can be seen on their livestreams, on their twitter feeds, and in their interviews after the fact.

              1. There’s certainly evidence that some of those were Trump supporters. Agent provocateurs don’t do all the work, they provoke.

                I hear there are going to be a lot of prosecutions. It will be interesting to see if everybody who invaded gets prosecuted.

              2. I made no such claim. I merely suggested that it was possible. (That’s what the words “for all I know” mean to us native speakers of the language.)

        2. The people who invaded the Capitol buildings were a mob, but they weren’t directed to do it by Trump. Unless you’ve got evidence to the contrary, in which case I suggest you hand it over to authorities so the prosecution can commence.

          I think they have access to the same online sources all the rest of us do. We all have the evidence to the contrary. Yes, even you. You just pretend that riling up an angry mob by screaming that the election was stolen and that they need to fight to prevent it and that people who don’t fight are cowards doesn’t really mean exactly what it says.

          1. Citation needed. “We’re going to the Capitol” does not mean “We’re going to invade the Capitol.” Demonstrators converge on public buildings in Washington all the time. There is no reason to think that Trump wanted his followers to invade the building. What would he have gained? At most, a temporary suspension of the count until the Joint Session could reassemble, if not in the Capitol then in an alternate location. If he seriously wanted to stop the vote count, the way to do that is send the army in to arrest the legislators, declare martial law, and suspend the constitution. He had no intention of stopping the count. Instead, he wanted the legal process of challenging electoral votes to go forward, and for a large crowd of supporters standing outside to cheer that process on. Having people on his side invade the Capitol and disrupt the count for a few hours would have gained him nothing, and in fact been counterproductive.

            1. Citation needed. “We’re going to the Capitol” does not mean “We’re going to invade the Capitol.”

              I’m curious about the logic of saying that a sentence taken out of context can have multiple meanings and therefore we cannot form any conclusion about what the sentence means from the context in which it was uttered.

              Maybe you fail to grasp that he had just spent an hour ranting about the election having been stolen, and ranting about the need to fight. (Along with other speakers saying the same thing.) If he were telling the truth — if Biden had really committed a massive nationwide fraud to steal an election that Trump had won in a landslide, and the deep state were conspiring to help him — then storming the capitol would have been justified!

              There is no reason to think that Trump wanted his followers to invade the building. What would he have gained? At most, a temporary suspension of the count until the Joint Session could reassemble, if not in the Capitol then in an alternate location. If he seriously wanted to stop the vote count, the way to do that is send the army in to arrest the legislators, declare martial law, and suspend the constitution. He had no intention of stopping the count.

              He absolutely had an intention of stopping the count. Maybe you missed his incompetent lawyer’s voice mail intended for the football coach that accidentally went to a senator with more integrity. Their plan was to delay the vote for days until they could strong-arm some swing state legislatures into sending different slates of electors to DC so they could steal the vote.

              I’m quite certain that if he thought the army would’ve actually followed that order, he’d have taken your suggestion,

        3. This bit from Jim Geraghty over at National Review is on point ( ):

          “Since yesterday afternoon, I’ve been thinking about this exchange from The Dark Knight. Harvey Dent, who has lost the love of his life and been terribly disfigured, confronts a corrupt cop who leaked information that led to his love being kidnapped and killed.

          Ramirez: I didn’t know . . .

          Harvey Dent: Didn’t know what they’d do? You’re the second cop to say that to me. What exactly did you think they were gonna do?

          When the president tells a crowd of thousands of his supporters to go over to Congress, as they certify an election result that he insists is fraudulent and an assault on democracy . . . just what did he think was going to happen?”

          1. He thought they were going to go over to Congress and mill around outside. That IS what most of them did, you know.

            Geraghty is comparing a political rally to a crime gang; Ramirez didn’t leak to a glee club, you know.

            Well, National Review, I guess I’m not shocked.

      2. No deals. We can not establish the precedent that the president can trade the office for immunity.

        1. Molly, we have never prosecuted a former president before, and it sets one terrible precedent.

          1. I disagree, not prosecuting them in the past is what set the terrible precedent. Time to change that.

            1. This is, of course, extremely dumb. You are giving leaders a clear, strong incentive to go out in a blaze of destruction.

              The same stupid, vengeful bloodthirst has caused death and misery throughout the world, in countless conflicts down through history.

        2. I appreciate the sentiment, but I disagree. In the other thread, I compared this to allowing third-world dictators, like Baby Doc Duvalier, to go into exile to France, so long as they abdicate all power and position.

          Sure, justice is not done. But you avoid further damage going forward. That is the tradeoff, and though it is mighty unpleasant, that tradeoff had been done many times.

          1. you avoid further damage going forward.

            I’m not sure you do, at least in the long term.

            What you are doing is saying that it doesn’t matter what the President does, the worst that can happen to him is being thrown out of office and being allowed to live a peaceful, prosperous life.

            That’s hardly a deterrent to criminal behavior. In Texas, a woman was sentenced to five years for voting illegally, and you propose to let Trump off no matter what he did?

            1. I get your point. I said, you are giving up justice.

              The point here is that you are trading that off for avoiding damage. A criminal with power is different from an ordinary criminal.

              What would you have done with Baby Doc? Insisted he remain and be tried, even if that meant more deaths and injuries as he fought to keep power?

              Now Trump is no Baby Doc. But he can still cause a lot of damage in the next two weeks.

              Not to mention that being forced to resign is a humiliation that no politician wants to suffer. Nixon did not go to jail, but he was destroyed for the rest of his life, and Watergate entered the lexicon as the quintessential political scandal (spawing numerous lesser “-gates”. )

              Do I like the result? No. Would I agree to it? Yes.

              1. Not punishing Nixon’s corruption sure taught the GOP a lesson.

                So much so that now you’re advocating Trump also get away with his behavior.

                I’m not sure that you understand the point of punishment, and that refusing to punish someone for bad behavior does not in fact dissuade someone from committing said behavior again in the future.

                1. I AM sure that my post went right over your head.

                  1. No.

                    Justice must be done, and Trump/future Presidents must be taught that there are hard boundaries from which not even party loyalty will protect them.

                    I understand your post without difficulty. The problem is that you are completely wrong.

                  2. No.

                    Justice must be done, and Trump/future Presidents must be taught that there are hard boundaries from which not even party loyalty will protect them.

                    I understand your post without difficulty. The problem is that you are completely wrong.

                2. refusing to punish someone for bad behavior does not in fact dissuade someone from committing said behavior again in the future.

                  That might have some relevance if you were his mommy. And he’s out of office in a couple of weeks, and will almost certainly never hold office again. What future behavior is it that you’re wanting to dissuade him from?

                  1. Uh, punishment serves the purpose of general deterrence as well as specific deterrence.

                  2. I’m surprised you have the audacity to respond to one of my posts again, after being so thoroughly embarrassed with yesterday’s remark about the D.C. National Guard.

                    I noticed that you never had the balls to respond after being proven to be an idiot. Maybe you’d like a chance to set the record straight here?

                3. <blockquote<Not punishing Nixon’s corruption sure taught the GOP a lesson.

                  I’m pretty sure the GOP hasn’t been using illegal methods to spy on their opponents recently. But the Obama administration did use the FBI and baseless claims of “Russian collusion” to try to criminalize *their* political opposition.

              2. The point here is that you are trading that off for avoiding damage.

                Avoiding short-term damage, maybe. But maybe incurring more in the long term.

      3. I like your deal, but don’t let Trump resign. Have Pence invoke the 25th and offer Trump a pardon on the way out. Offer Pence his own pardon from the next admin to get him on board. Let Trump go down in history as the mad king who was declared mentally unfit for office.

      4. But I don’t want the Constitution destroyed in the process of saving it, like the proverbial Vietnamese village. If what Trump did is protected by the First Amendment, then I would oppose impeachment on principle.

        I agree. But not having attended a law school that would hire someone like Prof. Blackman, it’s pretty clear that the argument that impeachment would violate the first amendment is risible.

    4. Add another one to the wants war side. Keep pushing people. See the paradise you are creating for everyone?

  11. Professor Blackman : “Over the past four years, we have defended many of President Trump’s actions as a constitutional matter, while criticizing those actions as a policy matter”

    Perhaps so, but I’ve always sensed being a lackey for Trump (as a constitutional matter) used to be a joy & pleasure for you. Now, not so much.

    Hey, look on the bright side, Professor : The disillusionment of your lackeydom may be a bitter pill to swallow, but other lackeys have it much, much worse. At least you’re not Mike Pence….

    1. Perhaps so, but I’ve always sensed being a lackey for Trump (as a constitutional matter) used to be a joy & pleasure for you.

      Yes, because a lawyer commenting on constitutional law matters pertaining to the current POTUS…on a constitutional law blog…while simultaneously criticizing his policies must mean that the commenter is a “lacky” for that POTUS.

      1. Indeed. The only reason to argue that a bad person has the constitution on his side is that he likes supporting bad people.

        It should be fun when that principle is applied to criminal defense lawyers.

  12. Two women are dead — one died in Charlottesville, VA and one died in Washington, DC.

    Both were engaged in illegal activities as a form of protest. One was blocking traffic, the other was walking into a room. One was hit by a car, the other was shot by an officer. Both are dead.

    What the hell is the difference?

    Where is the outcry about the “peaceful protester” who was “murdered” last Wednesday?

    1. What the hell is the difference?

      Only one of them was trying to interfere with a democratic election?

      1. I don’t see how that’s a relevant difference that makes offing one of them acceptable.

        1. It doesn’t, but that wasn’t Ed’s question.

          1. Oh. I believe that their hair color was different as well. But I believe Ed was referring to relevant differences.

        2. Alright, let’s try another one :

          (1) Though is professional judgement warrants investigation and perhaps trial, the capitol policeman who shot the rioter thought that action was required for public safety.

          (2) The guy who ran over the protester in Charlottesville picked her to murder because he disagreed with her political views.

          How’s that fer “relevant difference” ?!? Really, the whole question is dumbass stupid, even by Dr. Ed standards. It’s a line of argument best kept hidden within the Right-wing’s hermetic bubble, as anyone approaching normal will find it grotesquely absurd…..

          1. “The guy who ran over the protester in Charlottesville picked her to murder because he disagreed with her political views.”

            Fields drove his car into a crowd. That’s the exact opposite of ‘picking out’. According to the testimony of the cop who arrested him, he asked if anybody had been injured, and began crying when told somebody had died. Doesn’t sound like somebody who set out to commit murder, but maybe he just had second thoughts after doing it.

            Certainly the jury thought it was deliberate.

            But plenty of people the left have rioted over the deaths of over the last few years were not innocent victims, but instead criminals shot resisting arrest. Never seemed to stop the riots, though.

            1. Brett, she was killed because her head bounced off the A pillar of a car which was was invisible because it was blocked by a larger vehicle in the middle between it and the one he hit.

              In order for that to happen, she had to be (a) blocking the vehicle while (b) leaning around it to yell at the driver. That’s not innocent.

              There is a picture — taken by one of the protesters — that shows the brake lights on before impact. He was also fleeing an attack.

              1. You’re full of shit.

            2. Bloody hell, Brett. The guy drove full bore into a crowd of people sending bodies literally flying thru the air. You’re not helping an already pathetic case.

            3. You’re making excuses for a guy who “drove his car into a crowd?”

              Is that right? He began crying? Yeah. Because he knew he was going to prison for life. That’s upsetting news for anyone.

              No, he didn’t pick out the individual he killed, but he did decide to kill someone he disagreed with. He just didn’t care who it was.

              1. Well, great, we’re in agreement, because the only thing I disputed was that he picked her out. I’m willing to go with the jury’s conclusions concerning his motives.

        3. That’s because you’re not very bright.

      2. How illiberal.

        And to call that rigged election “democratic” is asinine.

        1. It was the most democratic election ever conducted.

      3. The elections were over long before January 6th. The Charlottesville woman was part of a mob that had just interrupted a rally protected by the First Amendment, and used violence to shut that rally down. Did the rally get to reconvene later that day to finish what they planned to do?

    2. That’s insane.

      One was deliberately murdered. (Brett’s claim that Shields merely panicked because he was trapped by the crowd is ludictrous) . That she was part of a group standing in the street is irrelevant.

      The other was shot, by a policeman, apparently trying to break into the Capitol. If she had been shot by the homeowner while trying to break into a house you would be crawling all over yourselves to defend the homeowner and saying she “got what she deserved,” etc.

      But because she’s a Trumpist nut case and QAnon lunatic you make her out to be a martyr, rather than just someone who made a terrible decision and ran into very bad luck.

      1. We need to stop replying to the treason caucus around here. They just come here for attention from normal people. That’s the only reason they don’t stick to their right wing hidey hole safe spaces.

        They have all but declared their fealty to Trump over the constitution. There is no point to talk to them, especially on a constitutional law blog. Don’t give them what they want.

    3. Oh give me a break. Heather Heyer was with a large group of people who were marching at 4th and Water Streets, threatening no one. James Fields went out of his way to drive into that crowd, backing up his car so he could build up speed before plowing into them. “Blocking traffic” is what marches do. It’s not even clear that the march was illegal. But even if it was, it didn’t mean she was placing herself in a position to be run down at high speed, any more than it would if she had, say, been on the Downtown Mall buying alcohol for a minor or writing a bad check.

  13. Of course Trump COULD be impeached over this. He could be impeached over a bad comb-over. Congress could, if they were feeling humorous, impeach him for being an aardvark. And the fact that he wasn’t one wouldn’t do any good if the votes were there.

    There was, of course, no “incitement” by any sane standard, but Trump’s foes don’t apply sane standards to him. They interpret everything he says through a presumption of evil.

    1. Don’t take this the wrong way, but I’m not sure you should be in charge of “sane standards”…

      1. I’m not in charge of them, but I’m entitled to have an opinion about them.

        Flip the situation around: If a Democratic President held a rally in D.C., and a few of the people charged the Capitol building, would you think that he’d incited them?

        If Trump’s speech was incitement, how many Democrats should be in prison today due to the events of last summer?

        1. If a Democratic President held a rally in D.C., and a few of the people charged the Capitol building, would you think that he’d incited them?

          That would depend on what they said.

            1. That’s not the only thing he said.

              1. No, it’s just the last thing he said. Incitement has to be related to “imminent” conduct to be legally incitement, after all.

                Sure, just before he’d said, “We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore.” And if he’d stopped there, you might have a weak case for incitement, very weak because he’d been using “fight” in a figurative sense all though the speech.

                But he didn’t stop there, he ended on an upbeat, not violent, note.

                1. Yes, but the meaning of words depends on their context. (Just like in defamation law.) The way the mob understands what Trump says, and the meaning he must have intended for them to give to his words, depends on what he said before.

                  To make this much simpler: It’s like agreeing with someone that if you call them and say “blue”, that means “press the button to blow this thing up”. Saying “blue” is normally not incitement to do anything, but it can be depending on what you discussed before.

                  1. Let me make this simple, too: You’re calling the protesters a “mob” to make your take on Trump’s speech seem more plausible. But he wasn’t talking to a “mob”, he was talking to a peaceful assembly.

                  2. So you *know* that when Trump said ““We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore,” he was inciting them to literal violence? And how do you distinguish that from the countless times other politicians talk about fighting in what nobody disputes is a figurative sense. (Such as when AFL-CIO President Trumka said that “As President, Biden Will Fight for All Working Families” and when Biden himself set up a “Biden Fight Fund,” back when Hillary was urging him never to concede, to do the kind of thing Trump ended up doing.)

                    1. This whole discussion of what he meant by “fight” is silly. Of course he meant to fight politically and legally. “Fight” is no more violent a term than “campaign”. That is literally a violent term too, and yet it is a term that Biden openly used — as did Trump and every other candidate in living memory, for any office from president to dog-catcher. It’s understood that in the context of elections a campaign is not literal, and neither is a fight, or even a “massacre” or “bloodbath”. And a normal part of political “fighting” is a group (“mob” if you like) marching to demonstrate its feelings to anyone watching. In DC it’s normal for such a group to assemble outside the Capitol for the purpose of making congressmen aware of its feelings, and to cheer on those congressmen who agree with it. Which is what Trump explicitly said was the purpose of this march.

              2. Then what did he say that makes it incitement? Point to the sentence and stop dancing around the issue.

                1. You’d have me trawl through weeks and months of Trump tweets and speeches? Are you insane? Why on earth would you think that I’d voluntarily do that?

                  1. You’d have me trawl through weeks and months of Trump tweets and speeches?

                    He’d have you back up your bullshit, which you’re clearly too dishonest and cowardly to do.

                  2. By the very definition of “incitement”, you are free of any need to go through weeks and months of speeches, and only have to pour over a minute or so.

                2. Are you satisfied yet that actual lawyers claimed Pence could throw out EV’s he didn’t like, or do you just hand out random assignments and not respond?

  14. Because Trump is a public official, wouldn’t the First Amendment implications of his speech be subject to the Pickering/Connick balancing test when it comes to evaluating misconduct in office?

    1. Who would be Trump’s employer in that analysis?

      1. The American people.

  15. It appears that Trump attempted to send out messages — via both Twitter and Facebook — asking people to go home and neither could go out because these platforms had banned him.

    Are THEY criminally liable?

    Why not? But for their actions, people would have been encouraged to go home.

    1. No. Because that would be really stupid.

    2. As usual, your only relationship with the facts is that you distort them.

  16. Whether someone actively organizes and orchestrates behavior is a question of fact.

    A mafia don who says we’d be better off if so-and-so slept with the fishes is not engaging in analysis or advocacy. He is issuing an order. He is engaging in conduct wholely unprotected by the First Amendment. And the fact that this is an order, not abstract speech, can be ascertained by evidence about the circumstances.

    If Mr. Trump ordered his followers to storm the Capital, he similarly engaged in unprotected conduct, not constitutionally protected speech. Whether he did or not can be ascertained based on evidence of informal organization, just as in any trial involving a criminal organization.

    1. I also think that in an impeachment trial, the President can be held to a lower standard than in an ordinary criminal trial. The President had a duty to protect the Capital and the operations of Congress. The existence of that duty means Congress can find the President’s misconduct rose to the level of criminality with less evidence than for the trial of an ordinary insurrectionist.

      1. That’s a lot of handwaving about “the level of criminality”. Would you also say that that applies to someone who literally told his followers to bring a gun to a baseball practice, I mean, a knife fight?

        1. Ok, who did that?

          1. 0bama. Literally said it. Of course he didn’t mean a literal gun, or a literal knife fight, and nobody understood him that way — just as nobody understood Trump to be calling for violence.

  17. “High Crimes and Misdemeanors” does NOT mean (only) acts that are federal crimes:

    1. I don’t think anyone is disputing that. (At least not today.) But that doesn’t answer the question whether the president has 1st amendment rights in an impeachment trial.

      1. @Martinned, “that” (Sandefur’s argument) means POTUS’s 1stA rights do not protect him from impeachment by the House nor ensuing conviction by the Senate. 1stA rights mean one cannot be convicted of a crime for protected speech. Sandefur is saying one can be impeached/convicted of behavior or absence of behavior (e.g., neglect) for which one could not be convicted of a crime.

      2. Further: the crux of this post’s point is

        The president could not be removed from office for engaging in speech that is otherwise protected by the First Amendment.

        That seems to me prima facie wrong. Would POTUS saying, “I have decided not to abide by the oath I took at my inauguration” be protected by the 1stA? Of course! Could POTUS be removed from office for saying it? Of course.

    2. From the first tweet in the thread I linked, referring to this post by Blackman and Tillman: “This is completely and dangerously wrong. Gross incompetence (to name just one example) is an impeachable offense notwithstanding the fact that it’s legal.”

  18. The serving President does not have free speech rights that prevent impeachment

    He can in fact be impeached for his words

    It is not a criminal punishment, it is a civil one

    How ridiculous an analysis by a trump lap dog

    1. So you would be for impeaching a President for proposing a law you don’t like.

      It’s 2025. President Nikki Haley gives a speech in which she proposes abolishing affirmative action, as inconsistent with the Civil Rights Act as of 2028. After all, in 2003, Justice O’Connor wrote for the Court, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest [in student body diversity] approved today.”

      Speaker of the House Alexandria Ocasio-Cortez erupts in anger. “That’s racist. We cannot have racism in the highest office in the land. It’s just continuing the oppression that started in 1619. Speech is violence, and the president just committed acts of violence against every person of color in the land.” So she proposes articles of impeachment.

      You don’t think the First Amendment applies?

      “It is not a criminal punishment, it is a civil one.”

      Get a clue. The First Amendment bars civil liability as well as criminal. Most First Amendment cases are civil ones, not criminal ones. Ever heard of NY Times v. Sullivan? That was a civil defamation case.

      So your analysis is legally flawed, to put it mildly.

      1. The President can be impeached for many things, and yes speech is one of them

        I imagine they could impeach him for calling Pelosi a poopyhead if they so desired

        It does not have to be criminal conduct

        Think more in terms of ‘conduct unbecoming an officer’

        You get run out of the military for a lot less than what trumpski said in his first month

      2. So you would be for impeaching a President for proposing a law you don’t like.

        Sometimes, sure. If the president says, “I propose that Congress pass a law to let us round up all the jews and gays and send them to death camps,” I don’t think “Hey, it’s just speech, and he’s just proposing that a law be passed; he’s not saying anyone should break the law” is or ought to be a defense against impeachment.

    2. Framing this as an incitement question is the problem here. Working to undermine your employer doesn’t enjoy first amendment protection even if that employer is the state, and firing that employee is not barred. To the extent that the Senate would follow SCOTUS in this, Waters v Churchill (1994)

      But though a private person is perfectly free to uninhibitedly and robustly criticize a state governor’s legislative program, we have never suggested that the Constitution bars the governor from firing a high-ranking deputy for doing the same thing.

    3. The first amendment protects people against civil penalties as well as criminal. Which is ultimately irrelevant. Maybe an official shouldn’t be impeached and removed for constitutionally protected speech, but it’s only the self-restraint of the congresscritters that protects them from having that done to them, as there’s no legal remedy available for–to give the example cited earlier–Mitt Romney when he gets impeached and convicted for being a Mormon.

  19. Andrew Johnson survived impeachment, in part for speeches where he called Congressional leaders traitors and suggested they were illegitimate. Imagine the potential for “incitement!”

  20. All other issues aside, why would Congress be bound by SCOTUS’s interpretation of the first amendment for purposes of impeachment?

    1. That’s kind of the point, they wouldn’t be. Blackman, to the extent he’s making an argument, is making a moral one, not a legal one.

      1. Or at least a legal one but not a practical one.

        1. This reads more like a persuasion piece than a legal article.

          1. I’m not a lawyer, but i detect a lot of “motivated reasoning” in this article. The accusations that everyone else is reading Trump’s speeches “wrong” was a red flag.

            And the very first comment by a supposed lawyer confirmed my layman’s suspicion: what does 1a protections for an individual have to do with the failures of a president to fulfill the duties of his office?

    2. SCOTUS has no say

  21. I recommend that Prof. Blackman make exactly this argument when Donald Trump appeals his impeachment to the D.C. Circuit Congress – or even beyond that, to the United States Supreme Congress.

    1. Another argument I don’t understand. Every federal officer takes an oath to uphold the Constitution. That includes Congressmen/women and Senators/Senatoresses. The fact that something is not reviewable by the courts does not mean that they are not duty bound to follow the Constitution. Or that someone cannot call it to their attention.

      1. Sure, but if something is not reviewable, they are only bound by their own understanding of the Constitution, and not by some court precedent.

        1. Yes, but they’re at least bound by their own good faith understanding of the constitution. That’s not the same as carte blanche permission to do whatever they like.

          1. Absolutely correct.

          2. Exactly. Which is why I believe that the vice president does have the power to reject the certificates of electors he honestly believes not to have been appointed in the manner their state legislature has directed, but he cannot do so if he does not have that honest belief. Nobody can review his decision, but he is subject to his own conscience and oath.

        2. Precisely this. I expect most members of Congress disagree with Prof. Blackman’s analysis of the First Amendment issues here – including whether the First Amendment constrains Congress’s impeachment power at all – and there is no court in a position to overrule their disagreement. So the president could, in fact even if not in Prof. Blackman’s interpretation of the law, be impeached and removed on the grounds of incitement.

          1. Basically it’s the same muddle that you get all the time in VC comments sections, and occasionally in posts. People mix up the difference between:
            1. What I think a court would say
            2. What I think a court should say
            3. What I think the individuals in question will do
            4. What I think the individuals in question might get away with doing
            5. What I think the individuals in question should do, as a legal matter
            6. What I think the individuals in question should do, as a policy question

            In this case, because any impeachment is almost certainly non-justiciable, 1 and 2 fall away, but it’s still important to distinguish between 3, 4, and 5.

  22. There’s something surreal about arguing that a president can’t be impeached for something, when it is self-evident that he can, if a majority of congressmen vote for it. He can even be convicted if enough senators vote for it. Sure, he can spend the rest of his life claiming that he wasn’t impeached, but it’s kind of like Trump saying he won by a landslide.

    1. So your view is the president can be impeached for anything, like picking his nose in public, or having a bad hair-dye job? And that the members of Congress who do so are not violating their oath to uphold the Constitution?

      Here is a clue. The Constitution binds EVERY federal officer in all three brances. They are duty bound to uphold it, as they swear or affirm to do when they take office. Some things are appealable to the courts, and some are not. That does not mean the latter are free from Constitutional regulation.

      1. Here’s another clue: It ‘binds’ them, but they don’t care.

      2. Yes, that is correct.

        The President can, in fact, be impeached for literally anything that congress deems a high crime or misdemeanor, and then votes in approval. It is a political action that is restricted only by the political will of the legislature. There is no requirement it be an actual criminal offense.

      3. If Trump can be declared “disabled” and pushed aside for Acting
        President Pence, not because he is disabled but because he is a bad president that people want out of the White House, then yes, the president can be impeached and removed from office for picking his nose in public. You might have trouble getting the votes to do that, and it might be an unprincipled action, but if the votes are there, there’s nothing anybody can do about it.

    2. “There’s something surreal about arguing that a president can’t be impeached for something,”

      Can you argue that they may not be impeached for something?

      1. I mean, you can certainly argue it to the body that is deciding whether to impeach him, and hope they agree with you. But what you’re really arguing is that they shouldn’t impeach, not that they can’t. I am extremely confident that, if Congress deems something to be impeachable, the Supreme Court will not think it has the power to second-guess that decision — it’s basically the paradigm of an issue that is committed to a separate branch of government. And even if there was a line to be drawn (I don’t think there is, bad hair dye or otherwise), I’m pretty sure even non-criminal incitement to riot in an attempt to pressure Congress to nullify the election of your opponent and reinstall yourself in office is not the kind of thing where the Supreme Court would say, “Well obviously THIS can’t be impeachable.” So yes, it’s a surreal argument.

    3. Sure, if enough members of Congress decided to impeach and convict a President for putting on a sock and a shoe and a sock and a shoe, they could make it stick.

      What keeps them from doing it? The same thing that prevents the courts from misapplying statutes to make the same acts a federal felony, and making that stick.

      There are rules, and a duty under the Constitution to uphold those rules, and the people entrusted with that duty take it seriously. There may be legitimate uncertainty about what the rules mean especially where they’ve been rarely exercised, and it is arguable that members of Congress would be more willing to bend the rules for political purposes, but it’s too stylishly cynical to believe they would entirely ignore them.

  23. Trump needs to be impeached now to show the world that we do not tolerate inciting a mob to attack the capital after spending two months falsely telling them the election was stolen.

    1. I agree with you, except for the lack of time. I indicated above how I think it should be handled.

      1. 16 Republican senators and I’ll bet he could be out in 4 hours

        1. It should have been done while all of Congress was counting the EC votes. All they needed was to send a car to fetch Roberts.

      2. There’s nothing that says you can’t be impeached after you leave office.

        1. Sure there is: “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.”

          After January 20th, Trump won’t be President anymore.

          1. You left off the part about the penalty including disqualification to hold future federal office. The clock does not run out on that.

    2. inciting a mob to attack the capital


      1. Isn’t it obvious that when Trump says, “We’re going to go to the Capitol,” he means, “You people: go the Capitol, breach security, and make an impossible-to-succeed effort attempt to prevent the votes from being counted (and in the process stop the legal procedure my people are following to challenge certain of those votes as illegal)”? Molly can read Trump’s mind, and that of his followers, so you should be able to as well.

  24. Lot of words for missing the point- impeachment is a political process, not a legal one.

    If it was legal, Trump should’ve been convicted and removed for obstruction at least, if not all the other charges on the first go around. But it’s political and the Senate, even while admitting he obstructed and did all these things, chose to acquit (like the unpatriotic cowards they are.)

    He could easily be removed for his role in inciting SEDITION. And he should. Only the fascists disagree with that.

  25. I’d agree with Blackman here.

    The issue is, if you’re going to say what Trump did was incitement, you almost CERTAINLY have to say what Harris said during the Kenosha riots was incitement. Keep in mind, this is during the riots.

    “People are rightfully angry and exhausted. And after the murders of Breonna and George and Ahmaud and so many others, it’s no wonder people are taking to the streets. And I support them.”

    1. Fair enough, but the protestors were not invading the halls of congress with the express purpose of preventing the finalizing of an election that the man exhorting them to do so just lost

      1. that the man exhorting them to do so just lost

        Please provide a link to a quote of Trump exhorting anyone to “invade the halls of Congress”.

        1. Nobody’s interested in playing your stupid game. The mob knew what he was saying, you knew what he was saying, and I knew what he was saying.

          1. It’s a stupid game appealing to Trump’s actual words, because everybody “knows” that they actually meant what YOU think they meant, rather than the ordinary, every day meaning of the words?

            This is not a game, we’re not obligated to interpret everything Trump says through YOUR presumption of evil.

      2. Even if that were true (and it’s not), “invading the halls of congress with the express purpose of preventing the finalizing of an election” is not in any way worse than what the Kenosha rioters were doing . On the contrary, they did a lot less damage than the Kenosha rioters. And these people believed in the justice of their cause just as passionately as the Kenosha rioters believed in theirs, and with perhaps more reason to. There’s nothing to distinguish them, unless you sympathize with the Kenosha rioters’ delusions.

    2. During the riots, i.e., after they started, i.e., did not incite them.

      1. That doesn’t fly. This would be consider inciting to continue the riots.

        If you say to a bunch of riots with a loudspeaker “Continue attacking and fighting!”….and the rioters are currently in a struggle, it will count as inciting the riot.

        1. It also encourages more riots.

        2. Well, Ayanna Presley said there should be “unrest in the streets,” which is a lot more like an incitement to violence than “Go to the Capitol.” Nancy Pelosi, speaking of family separations at the border, said, “I just don’t even know why there aren’t uprisings all over the country, and maybe there will be when people realize that this is a policy that they defend. It’s a horrible thing, and I don’t see any prospect for legislation here.” If there was no legislative solution, what kind of a solution does it look like she was calling for? And Kamala Harris, speaking of last summer’s riots, said “They’re not going to stop. They’re not going to stop. This is a movement, I’m telling you. They’re not gonna stop. And everyone beware because they’re not gonna stop. They’re not gonna stop before Election Day and they’re not going to stop after Election Day. And everyone should take note of that. They’re not gonna let up and they should not.” That’s a lot more than “Go to the Capitol” or even “Fight like hell.”

        3. It does fly. Especially since Trump actually told them where to go and what to do before they did it.

          1. Where did Trump tell them to wield lead pipes and break into the Capitol?

          2. Especially since Trump actually told them where to go and what to do before they did it.

            That’s right. He told them, “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”

    3. Yes, but she was explicitly talking about protests, not riots.

  26. This is the future of the right-wing legal academy.

    I am content.

    I will miss sparring with some of the more competent movement conservatives after they retire and hand the keys to Blackman. Maybe I’ll develop a sadistic streak that makes kicking hapless clingers just as enjoyable.

    1. Does your therapist know that broadcasting your feelings to the world, and your hopes to developing sadism, is one of your favorite pastimes?

  27. Blackman’s interpretation of the word “imminent” (and Eugene’s, for that matter) is debatable, even by legal standards (let alone by political ones). Trump yelled fire in a crowded theater! He stirred up his mob with a bunch of falsehoods and then told them to go to the Capitol, and they did, just like he asked. Also, he is a public official, so one can argue that he must be held strictly liable for the consequences of his speech.

    1. I am confident Profs. Blackman and Volokh could have (and would have, eagerly) generated a great torture memo.

    2. Also, he is a public official, so one can argue that he must be held strictly liable for the consequences of his speech.

      That’s… an interesting suggestion. Does it apply to other politicians, too?

      BLM is based on a series of mostly lies, and yet those lies get repeated by many politicians to people that then go out and riot, doing billions in damage and killing dozens of people. Are they “strictly liable”?

      1. I believe you will find, Toranth, that your betters’ appetite for your bigotry, superstition, and backwardness has diminished.

  28. What can we expect from a lawyer other than legal analysis?

    But impeachment is a political action, not legal. That is true despite the “high crimes and misdemeanors” phrase. So, yes of course he can be impeached for whatever reason.

    But I think it would be very harmful to this country to end this term with an impeachment. We do not start a period of healing and conciliation with an act of vengeance.

    1. Is that seriously the conclusion that Trumpists have drawn from last year’s impeachment? Not that Trump was super-guilty but was acquitted anyway, but that presidents (and others) can be impeached for anything? Wow…

      1. In a constitutional sense, presidents (and others) CAN be impeached for anything. The restriction on the use of the impeachment power (and subsequent vote for removal from office) is a political and moral restriction.

        From a moral perspective, many members of the legislature believe that presidents should not be removed over political disagreements, and that the power should be used sparingly for the good of the nation.

        From a political perspective, there are several factors. As an example, the views of the electorate are considered. Would voting to impeach have positive or negative affects at the ballot box? There is the consideration for who would be the next president, etc.

        1. Just because the definition of “high crimes and misdemeanours” can’t be tested in court, doesn’t mean it’s not a legal constraint.

          1. If there is no functional restriction on it, then there is no restriction. If the house votes to impeach, and 2/3 of the senate votes for removal, the president is removed. It doesn’t matter what the reason is.

          2. Just because the definition of “high crimes and misdemeanours” can’t be tested in court, doesn’t mean it’s not a legal constraint.

            Uh, that’s pretty much exactly what it means.

            You really ought to start having someone reasonably intelligent (if you know any such people who will actually have anything to do with you) read your posts and explain to you just how stupid they are before you hit the “Submit” button.

  29. Since we’ve already been around the block a few times on this, I think it bears repeating that:

    High Crimes and Misdemeanors is one of this “technical terms” that includes concepts like maladministration. This is the difficulty people have when the put on their modern lenses and try to read older language; see also, “ex post facto.” But this goes back to Blackstone, who wrote extensively on the subject.

    Basically, the idea that you had to write for somewhat to commit a technical “crime” to be impeached was absurd, since the biggest issues would be offenses against the public trust- maladministration. Simple negligence of your public duties would be sufficient to be a “high crime or misdemeanor”.

    The other thing is that impeachment is determined not by reference to the statute books and the legal courts (what is incitement?) but rather by the legislature.

    Which makes the above analysis both deeply wrong and bizarre. You don’t have a “First Amendment Right” to stay in office, and no court would ever say that you can’t get impeached because of that.

    It’s interesting to see that JB has had his Josh Hawley moment; the question is whether JB’s personal John Danforth will reach out to him, or … not. After all, if you believe that the Hawley/Cruz/Trump path is the future, I can see why you might want to straddle that path. “This pains me greatly, yet I must continue my servitude.”

    1. This is the best take in the thread.

      It’s also surprising that Blackman put these thoughts to paper. It’s a pretty clear persuasion piece aimed at…I’m not really sure who. The Hawley’s and Cruz’s of the world to provide cover to vote no in an impeachment hearing? But to what end?

    2. I’m not convinced “simple negligence of your public duties” is enough to constitute a “high crime.” However, maliciously undermining our democratic institutions easily does, and that too does not require a statutory criminal act nor is protected by the First Amendment.

      1. Well, that’s something you can take up with Blackstone.

        Commentaries on the Law of England, Book IV, Chapter the Tenth.


        “THE order of our distribution will next lead us to take into consideration such crimes and misdemeanors as more especially affect the commonwealth, or public polity of the kingdom: which however, as well as those which are peculiarly pointed against the lives and security of private subjects … ANOTHER offense of the same species is the negligence of public officers …”

        Crimes and misdemeanors. It includes not just “felonies” (crimes) but “misdemeanors” (which can be penal, and otherwise “descend gradually to such as are of less malignity.”).

      2. To put it in more clear perspective;

        imagine someone elected to office, who then proceeds to simply … not perform. Just hangs out on the golf course all day. Maybe gives the required state of the union, but otherwise does absolutely nothing.

        Is there remedy because they are not committing a crime? Or is that the type of maladministration … negligence … which “in very notorious cases will amount to a forfeiture of his office[.]”

        We can all think of examples of things that are, or are not, impeachable, but we are not the judges of that- the legislature is.

        1. I’m OK with that example. What worries me is using “maladministration” as the reason to impeach someone for a political disagreement. For example, Obama institutes DACA. Some will argue that is maladministration.

          1. Some will argue anything! Fundamentally, it’s a norm. It’s the Andrew Johnson precedent.

            We have to hope and expect that legislators do not use the impeachment power for mere policy disagreements, just as we have to hope that Congress does not declare war on Canada for no reason, or that the President does not launch nukes at Chile because he thinks it’s a stupid name for a country.

            I never used to think that this was an issue … but, well, you know. “Do your job correctly, and think of the national interest and posterity” shouldn’t be that difficult.

          2. Well, I’d argue that WAS impeachable, because by his own statements, Obama was violating the Constitution by doing it, and knew it.

            Maybe you should pick some policy choice that was actually legal? Say, the contraceptive mandate? (The ACA specified preventative care, but didn’t define it, so that was a discretionary policy choice.)

            1. If they had the votes to impeach they would have had the votes to change the policy

              1. IOW
                trumpski tweets that he is going to nuke Iran in 24 hours

                COngress cannot ‘vote to change that policy’

                But they can vote to impeach[and convict] him

              2. They had the votes to NOT enact the policy in the first place. That’s all the votes they needed: Presidents don’t get the right to legislate from the Oval office on any topic where enough members of Congress agree with them that his veto could be sustained.

                He came right out and said it wasn’t within his power, and then did it. That made it not an ordinary exercise of policy discretion, but self admitted usurpation of the legislature’s authority.

                1. Whine whine whine….

                  and trumpski moved military funds without authorization but you love him so why not complain about someone who has not been president for 4 years

            2. “Obama was violating the Constitution by doing it, and knew it.”

              Legal insights concerning Obama from a birther?

              This is what making neutering clingers such good fun and important work.

  30. Serious question- who do we need to reach at Reason to get them to stop printing this idiot’s legal analysis? There are plenty of outlets that specialize in making the world a stupider place. I don’t think Reason wants to be one of them.

    1. It’s not Reason, it’s the VC.

      Take it up with Eugene.

      1. I’m not a lawyer, and I’m guessing you are. Is this as dumb as I suspect it is? How is Brandenburg a supporting precedent for making 1a protections apply to speech from public office holders discharging (or failing to dishcarge) their official duties?

        1. Blackman wasn’t talking about the argument that Trump should be impeached for discharging or failing to discharge his official duties. He specifically argued that was too amorphous a charge to be viable. He was talking about the argument that Trump should be impeached for incitement.

          1. I think he can be impeached for incitement even if the First Amendment immunizes him from a criminal charge of incitement.

          2. It’s the “viability” part I’m having a problem with. Maybe he’s assuming I have read his past pieces (I haven’t), but I don’t see any support in the article for any charge having to meet any standard for viability in impeachment.

            1. By “viable,” I mean capable of being demonstrated to the satisfaction of a majority of the House and two-thirds of the Senate within the next 12 days. In order not to be a waste of everybody’s time, any charge brought now had better be viable in that sense.

    2. “Serious question- who do we need to reach at Reason to get them to stop printing this idiot’s legal analysis? ”

      I guess for Prof. Blackman’s sake, it’s a good thing Reason isn’t owned by Simon & Schuster.

    3. Nobody’s forcing you to read it. You could just flip past. But of course you want to deny those who’d like to read Blackman this easy opportunity to do so.

  31. Can be removed for any reason that Pence and 8 cabinet members feel is reason enough

    And I suspect there is concern from within that they are perilously close.
    The main reason for cabinet members to resign right now is to avoid having to take a personal stand. Chao and DeVoss have sidestepped publically siding with the boss.

  32. Impeachment does not require a criminal offense have been committed. An egregious abuse of power is enough. This reckless speechifying – and all such speech throughout the past – more than qualifies. A long trial focused on evidence is not really necessary when the long train of abuses and usurpations is this public, this well publicized.

    Presidents have only been impeached twice. No president has ever been convicted. I am entirely unworried about the institution being infected by a rush to judgment. If we continue to insist, wrongly, that impeached and conviction always be about violations of clearly and precisely defined rules, not violations of more flexibly described principles, we might as well just say presidents cannot be impeached, for all the restraint it would impose.

    Or in other words: it should not matter if this doesn’t meet the Brandenburg standard. It is entirely proper to demand more of politicians, and of presidents, and of a president whose fan base is this rabid. And it is right to enforce that demand by threat of impeachment and conviction.

  33. *three times, but the point is the same

  34. Even if the Free Speech Clause applies in impeachment proceedings (And I’m not sure what I think about that), isn’t the relevant standard Garcetti, not Brandenburg? The president is a government employee. When he gives public speeches, especially at the white house, he is speaking in his capacity as a government employee. When congress impeaches, congress is representing the government, acting as his employer, deciding whether or not to fire him. Under Garcetti v. Ceballos, he should have no Free Speech Clause defense in this context.

    1. The Congress is the President’s employer? I would think the Congress and the President are employees of the People.

      1. COngress can fire him, but he cannot fire congress, so close enough

      2. The government certainly is his employer, and the remedy sought in an impeachment proceeding is the end of that employment relationship. This proposed impeachment is government regulating speech in the context of an employer/employee relationship, not a sovereign/citizen relationship, that seems like the context for which Garcetti is intended, not the context for which Brandenberg is intended.

  35. It must haunt Josh Blackman that his God died him a chance to contribute to a torture memo.

  36. Prof. Blackmun, your premise is flawed. The Constitution doesn’t give Trump a right enforceable against Congress in its consideration of impeachment. The First Amendment might prevent a future administration from prosecuting Trump for constitutionally protected speech, but Congress should, can, and will apply whatever standards it believes appropriate — even if the application of those standards would be forbidden in a criminal prosecution.

    This whole essay is a waste of space and breath.

    1. You’d get a failing grade on this if it were an exam question in any constitutional law course. God help your own students if you think this is the law.

  37. ” You’d get a failing grade on this if it were an exam question in any constitutional law course. ”

    I gather you do not spend much time in South Texas.

  38. Why are so many people so invested in carrying so much water for an imperial presidency?

    The president is not a king, should not be a king, and yet so many people want an unaccountable king to bow down before. I just do not understand it.

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