The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[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.
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).]