The Volokh Conspiracy
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In an interesting recent post, co-blogger Josh Blackman and Seth Barrett Tillman argue that President Trump cannot be impeached and convicted for his role in inciting the riot at the Capitol because he was engaging in First Amendment-protected speech. Their argument is clever, but fundamentally wrong. And for a very simple reason: the First Amendment doesn't protect high-ranking government officials from being removed from office because of their speech.
For present purposes, I assume Blackman and Tillman are right to conclude that Trump's speech is the sort protected under the current First Amendment doctrine, and that it would be unconstitutional to impose criminal or civil penalties on him for it. I actually think they may well be right on that point. But it is irrelevant in a context where the relevant penalty is removal from a high position of government power—and possible exclusion from future office-holding.
Under current Supreme Court precedent, lower-level non-policymaking government employees have at least some significant protection against being being fired because of their views or their political speech. But the Court has also made clear, in various rulings, that higher-level policymaking employees whose political views are relevant to the performance of their duties enjoy no such protection. Indeed, high-ranking government officials get fired because of their political speech all the time. Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn't like (Secretary of Defense Mark Esper was a notable recent example).
The exact dividing line between a policymaking employee whose views are relevant to his or her job and a lower-level official who enjoys First Amendment protection against firing is hard to specify. But it's pretty obvious that the president falls on the former side of the divide. If anyone is a high-level government with enormous policymaking discretion whose views are relevant to job performance, it is the president of the United States!
If First Amendment-protected speech could never be grounds for impeachment and removal of the president, it would lead to absurd and dangerous results. Consider a scenario like the following:
The President of the United States makes a speech in which he he avows his desire to "do everything I legally can to promote fascism." He then exhorts his supporters (who are known to include violent elements) to "fight like Hell to establish Fascism, and if you don't fight like Hell, you're not going to have a country anymore." In the aftermath of that speech, neo-Nazi and white supremacist supporters of the president attack a government building, with numerous resulting injuries and loss of life.
Everything in the above hypothetical speech is protected by the First Amendment. It is actually very similar to Trump's speech just before the recent riot, quoted by Blackman and Tillman (I have deliberately adapted some of Trump's language). The only significant difference is the addition of the references to fascism. And that difference doesn't matter for First Amendment purposes. Indeed, Brandenburg v. Ohio, the classic 1969 case cited by Blackman and Tillman, involved inflammatory remarks by a neo-Nazi KKK leader. A fascist or a Klansman cannot be fined or imprisoned for expressing his awful political views, nor could he be discriminated against in the provision of government benefits, such as welfare payments or educational loans.
Nonetheless, Congress would have good reason to impeach and remove a president who actively advocated and promoted fascism, incited fascist violence, and otherwise sought to replace our constitutional system with a fascist one. And that would be true even if the speech involved was of the kind generally protected by the First Amendment and his actions did not violate the letter of federal law.
Using the powers of the presidency to promote fascism —even legal powers—would be an abuse of power, and a menace to the constitutional order. The same goes for using the "bully pulpit" of the presidency for the same purpose, especially if it resulted in foreseeable violence.
What is true of presidential promotion of fascism is also true of Trump's repeated justifications and promotion of violence by his supporters, going all the way back to the 2016 campaign. All or most of it may well be protected against criminal and civil sanctions by the First Amendment. But it is still an abuse of the power of the presidency, and still grounds for impeachment and removal.
The same reasoning applies to Trump's recent effort to pressure the Georgia Secretary of State into fraudulently altering the vote count in his state, the other potential ground for impeachment currently under consideration by House Democrats [see Update #2 below]. Trump's actions in that instance may have violated federal and state law. But if not, his statements there were protected by the First Amendment, in the sense that he could not be subject to criminal or civil sanctions. Even so, pressuring government officials to engage in election fraud is an abuse of presidential power worthy of impeachment.
The obvious response to this argument is that it might lead to a slippery slope where Congress might impeach and remove presidents merely for expressing views they disapprove of. My critique of Josh Blackman's similar slippery slope argument against the first impeachment of Trump applies here as well:
Every president has partisan adversaries who who would be happy to "get him" if they can. Nonetheless, slippery slope fears about impeachment are misplaced. If anything, there is much more reason to fear that presidents who richly deserve to be removed will get away with serious abuses of power.
The biggest reason why we need not worry much about frivolous impeachment and removal is that removal requires a two-thirds supermajority in the Senate, as well as a majority in the House of Representatives to impeach. The former is almost always impossible to achieve unless many senators from the president's own party vote to convict him. They are highly unlikely to do so for frivolous reasons. [Prominent conservative legal scholar] Michael Paulsen expounds on this and some other constraints on abusive impeachment in greater detail here….
Ultimately, the real danger we face is not that too many good presidents will be removed from power unfairly, but that too many grave abuses of power will go unpunished and undeterred. I am not optimistic that impeachment alone can solve this problem. The supermajority requirement that prevents frivolous impeachment also prevents it in all too many cases where it is amply justified. But the threat of impeachment for abuse of power can at least help at the margin.
Let presidents—even "good" ones—lose more sleep over the possibility of impeachment. The rest of us will then be able to sleep a little easier, knowing we are that much more secure against abuses of government power.
I made additional relevant points in this post, where I explained why the occasional potentially unfair impeachment and removal of a "normal" president is a price well-worth paying in order to get rid of dangerous menaces like Trump—and deter future presidents from imitating them.
The First Amendment issue isn't the only possible objection to impeaching Trump. I myself have noted that there might be valid prudential reasons to forego a second impeachment if it looks like it might actually redound to Trump's benefit.
I will likely have more to say about the other issues involved in this impeachment effort in future posts. In this one, I just wanted to address Blackman and Tillman's First Amendment theory.
UPDATE: I wrote this post before seeing Jonathan Adler's insightful response to Blackman and Tillman, which makes similar points to mine. I would add that, I too agree that the president may be impeached for abuses of power that do not qualify as violations of specific criminal or civil laws. For helpful summaries of the relevant historical evidence on that point, see recent analyses by Gene Healy of the Cato Institute, Keith Whittington, and prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here).
UPDATE #2: The draft Article of Impeachment currently being circulated by some House members combines Trump's role in the Capitol attack and his call to the Georgia Secretary of State into a single count.
UPDATE #3: In the original version of this post, I accidentally referred to former Secretary of Defense Mark Esper, as "Mike Esper." I apologize for the error, which I have corrected.