Impeachment

The First Amendment Doesn't Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol

High government officials don't have a First Amendment right to be protected from firing based on their political views. That applies to presidents facing impeachment no less than other officials.

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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.

 

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. “Interesting” is certainly one way to describe that post

    1. And “clever” is an “interesting” way to describe their argument.

      1. Also interesting

      2. It is astonishing what law professors think they can get away with. No practicing attorney would waste their clients’ time with “clever” arguments or go into court armed with a circuitous legal analysis that requires prefacing by saying, “Bear with me here…” That is the kind of nonsense I pulled on term papers in law school, where I could spend hours poring over cases on Westlaw and where my arguments had no practical import.

        In practice, you want simple arguments, with clear legal support. That’s how you win. That’s how you persuade a counterparty. That’s how you help clients make decisions. The only people who buy these elaborate and borderline incoherent arguments are people already committed to a particular outcome.

        So, I suppose, it’s a good thing Josh teaches in the Fifth Circuit.

        1. No practicing attorney would waste their clients’ time with “clever” arguments or go into court armed with a circuitous legal analysis that requires prefacing by saying, “Bear with me here…”

          Apparently you’re unfamiliar with the Kraken litigation.

          1. Fair. I should have indicated, no competent practicing attorney.

      3. And Correct is the best way.

    2. Ann Althouse:

      The 7 most violence-inciting statements in Donald Trump’s speech to the crowd on January 6th.
      Here’s the transcript. I read the entire speech — which was over an hour — looking for the sentences that are most subject to the interpretation that he was inciting the crowd to break into the Capitol building or commit any sort of act of violence. I’m doing this because I realized I wasn’t seeing quotes from Trump, just assertions that the speech was an incitement and cause-and-effect inferences based on the sequence of events: He spoke and then they acted.

      There are places where he clearly talked about a peaceful protest march. He says: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.” And: “So we’re going to, we’re going to walk down Pennsylvania Avenue… So let’s walk down Pennsylvania Avenue.”

      But here are the 7 most violent statements. Please, if you can find anything more violent or more related to the idea of breaking into the Capitol and physically disrupting the proceedings, let me know, and I’ll add it to the list. This is what I’ve found and have put in order from least to most violent:

      7. 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.

      6. To use a favorite term that all of you people really came up with, we will stop the steal…. We will not let them silence your voices.

      5. The Republicans have to get tougher. You’re not going to have a Republican party if you don’t get tougher.

      4. [W]e’re going to have somebody in there that should not be in there and our country will be destroyed, and we’re not going to stand for that.

      3. We will never give up. We will never concede, it doesn’t happen. You don’t concede when there’s theft involved.

      2. We’re not going to let it happen. Not going to let it happen.

      1. Together we are determined to defend and preserve government of the people, by the people and for the people.

      1. Now, for context, share what conversations were going on among the protestors, on their various internet accounts. Trump. of course, had access to all of that. He has known, and clearly has studied, right along, what impulses and intents his followers cherish. To evaluate the burden of Trump’s incitements, put his remarks in the context of the real-time conversations among the members of his mob. There is no point in pretending Trump has not been aware of that. He has attended to little else.

      2. Bingo. There is no justification for impeachment. There is no incitement.

      3. And the context is also needed. Other speakers had already riled up the crowd. Rudy had shouted that they needed to have trial by combat. Mo Brooks had ranted about going to “kick ass.”

        1. So when Rudy Giuliani and Mo Brooks talk about trial by combat and kicking ass, that’s a clear incitement to violence, but when Barack Obama talks about pinching twice as hard and bringing a gun to a knife fight (in a world where Republicans like Steve Scalisw and Rand Paul have been the victims of literal physical assaults), that’s just metaphorical bluster. We draw this distinction because people like Obama are good people, so when they speak we should attribute ute good intentions s to them. Republicans, however, are bad people, soqhen they speak we should attribute bad intentions to them. And we know they’re bad people because they say bad things like Giuliani and Brooks said.

          1. So when Rudy Giuliani and Mo Brooks talk about trial by combat and kicking ass, that’s a clear incitement to violence, but when Barack Obama talks about pinching twice as hard and bringing a gun to a knife fight that’s just metaphorical bluster.

            Yes. I’m sorry if you’re too stupid to understand context.

            That’s setting aside that Obama wasn’t the one who said the line about punching twice as hard and the fact that both of those quotes were said years earlier than the attacks on Scalise and Paul.

      4. “The First Amendment Doesn’t Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol”
        This is one of the stupidest article ever published in Reason Magazine.
        Congress creates a constitutional crisis by ignoring the FACT that the Democrats STOLE THE ELECTION and quickly changes the narrative to Trump incites a riot .
        The idiotic author claims that the AMERICANS – TAXPAYERS who paid for building the Capitol do not have a right to enter the facility. Ain’t that some shiites.
        The miserable POS who wroyte the article claims that American Taxpayers do not have the right to demand that the EC votes from the battleground states be REJECTED since they were obtained by FRAUD.

        .

        1. 1) It’s not an article.
          2) It’s not published in Reason.
          3) The election was not stolen, you delusional idiot.
          4) There was zero fraud. Black people voting is not “Fraud.” And, no, nobody gets to “reject” the votes of an election.

  2. When the Blackman post and the Volokh Conspiracy in general were mentioned during an American Constitution Society call this afternoon, the participants rolled their eyes, laughed, and dismissed it with ‘they’re just wrong.’

    (‘So they knew my name!’
    — Josh Blackman)

  3. A third post discussing apolitical topic like it was a legal one!

    “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” Ford

    1. You’ve erased the phrase “high crimes and misdemeanors” from the Constitution

      1. But ultimately it’s a political question, not a matter for the courts.

        If congress impeaches and convicts, the court isn’t going to get involved.

        But it’s not going to happen, Congress is scheduled to be on vacation until the inauguration, there isn’t time as there is to impeach and convict in 12 days, let alone call congress back in session first. And don’t forget the GOP controls the Senate until Trump and Pence leave and Biden and Harris take office anyway.

      2. “erased the phrase”

        The phrase was used in England. Parliament impeached for a wide variety of things, it never had a set meaning. Generals got impeached for failing to win a battle which unless intentional, is not any sort of misbehavior.

        Its an elastic term, so Ford IMHO was 100% right.

    2. Which is wrong. You don’t have a successful impeachment until the Senate votes to remove the President. Therefore an “impeachable offense” is whatever 2/3rds of the Senate considers it to be.

      Presidential impeachments (attempts/removals) 3/0.

  4. Good post. Thank you for taking my example (given in the prior OP that you cited to) and fleshing it out a bit.

    1. Santamonica, are you pulling a Blackman, but commenter-style?

      1. You noticed that, huh? (Yes, it was intentional.) Some sort of internet equivalent of the humble-brag.
        (As a general rule, when one takes another’s idea and runs with it; it’s not a terrible idea to attribute the original source, just from a politeness standpoint.) 🙂

      2. Questions :

        1. How long before the phrase “pulling a Blackman” enters the lexicon & becomes common usage?

        2. Will it then appear in the courts in cases of libel & slander?

        3. Will Professor Josh remain proud of his fame regardless?

  5. “Nice” that not everyone at TVC is either a Trump apologist or, you know, tongue-tied.

    1. Actually, if you’d been paying attention, almost everybody at the conspiracy is either a NeverTrumper or at best indifferent.

      1. Indifference is violence … or something ¯\_(ツ)_/¯

  6. “Their argument is clever, but fundamentally wrong.”

    Tagline for the incoming Oliver Stone masterpiece, The Man Who Could not Build a Wall.

  7. Thanks for the tips for the Biden/Harris impeachments, coming your way January, 2023.

    1. If the Republicans win control of the House in 2022, then they’ll have that ability, if they feel that it’s a good idea to do so. Who would ever suggest otherwise?

      1. It would just turn into a big circle jerk like Trump’s impeachment was.

        Sure let’s impeach Biden or Harris if we get the real shit, but let’s not pull a Pelosi and impeach him just because he gets on our nerves.

        1. On the other hand, if Biden ever runs foreign policy thru his private attorney (and two low-grade henchmen) so the international affairs of this country can be used solely for his personal benefit, I’d say he’s fair game.

          Who would ever suggest otherwise?

  8. If Biden had an IQ above 12, he’d tell Pelosi to stop this stuff and stop it now.

    All this is going to do is further inflame tensions in an already tense environment — I’m seriously worried about what is going to happen on the 20th and this garbage ain’t helping things.

    This is petty and vindictive, it’s twisting the knife, and it’s like tossing matches into tinder dry brush — not a good idea.

    1. Yes, this will inflame tensions, but it would also bring all the Trumpers out into the open where they will likely commit crimes and be arrested. We can cleans ourselves of their filth.

      1. I really, really miss the days when I didn’t understand why the left keeps building gulags.

        1. I miss the days when I did not understand how the Nazis took over Germany.

          1. Good God. Gonna keep it up to the very end.

            “Everyone who disagrees with me is a Nazi”.

            Just closed-minded ignorance on display.

          2. You were not supposed to use this knowledge as a guide!!

          3. Well, they certainly didn’t do so under the banner of a guy who griped while complying with every court order, and has now conceded the election.

            The idea that a basically law abiding loud mouth was an aspiring dictator was the kind of insanity you only come up with when you want an excuse to cut legal and ethical corners, and the other guy being a monster seems like a good excuse.

            1. He hasn’t conceded, and he didn’t on Dec. 14, either.

              1. I agree he didn’t concede on Dec. 14th, and that both surprised and annoyed me. I’m glad that he’s willing to fight to the end, but he needs more capacity to recognize when he’s reached that “end”.

                He certainly has conceded now. He’s conceded that Biden is going to be President, which is all the concession that matters.

          4. I miss the days when I did not understand how the Nazis took over Germany.

            You mean the way, after the Reichstag fire, they excluded SD and KPD members, the way, after the Capitol riot, certain Democrats want to exclude any Member of Congress who supported the challenge to the electoral ballots?

        2. Gulags.

          You mean arresting the rioters and murderers?

          Meanwhile, it was one of your guys wearing a “Camp Auschwitz” t-shirt while vandalizing the Capitol.

          1. No, I’m cool with arresting rioters and murderers, and we could have used a lot more of that last year. Shutting down last year’s riots might even have kept these clowns from getting the idea they’d get away with this.

            I mean regarding your political foes as “filth”.

      2. “We can cleans ourselves of their filth.”

        “filth”

        Nazi language.

        Where are the camps being established frauline?

        1. I think the word she was actually looking for was “Untermensch”. But with all those books burning she couldn’t look it up.

      3. And when they come for your filth? Will you be such a cheerleader for unconstitutional bullshit as you are now? Will you still be cheering for the criminal who summarily executes you?

      4. Time for a new screen name Molly. “Rosa Krebs” perhaps.

    2. Read his speach from yesterday. He’s been calling for unity out of one side of his mouth and furthering division out of the other for the past year.
      https://www.npr.org/sections/biden-transition-updates/2021/01/07/954404473/biden-is-set-to-introduce-merrick-garland-as-his-attorney-general-pick#remarks

      1. You mean like every other media talking head did during BLM riots this summer? Wonder where Trump got that tactic from?

    3. Everyone should pause a second with the Soviets vs Nazis shtick. We should ignore Dr. Ed’s concern trolling about being “seriously worried about what is going to happen on the 20th”, knowing (as we do) that fellow engages in intense self-indulgence in the dark hours of the night over lurid fantasies of a new civil war.

      Just step back, take a deep breath, & luxuriate in this choice irony : Dr Ed, one of the most rabid Trumpites among us, piously whining about being “petty and vindictive”.

      A Trump supporter saying this !!! Don’t that beat all?

  9. The obvious response to this argument is that Trump is factually innocent.

    1. Do people still think it is mean to mention Brett’s personal inadequacies when he spouts off like this?

      1. Brett is a liar, a treasonweasel, and a gullible fool, who is committed to the Trump Can Do No Wrong cult.

        But I still think his personal health issues are off limits.

    2. Stupid people will never comprehend factual innocence.
      They only know what the MSM lies to them is true.

  10. “I have deliberately adapted some of Trump’s language.”

    No shit, Sherlock. Why didn’t you add a confession that he was going to overthrow the government, while you were at it?

  11. The Mueller investigation and any impeachment are lawyer nitpicking attempts to reverse the 2016 election. They are insurrections against the constitution. Arrests for that charge are justified.

  12. his Role in Inciting the Assault on the Capitol

    Which was what, exactly?

    The only significant difference is the addition of the references to fascism.

    LOL! You actually believe that, don’t you?

  13. These legal analyses are just the feelings of lawyers. Dismissed.

  14. Again, the single biggest problem is this.

    Liberal politicians made numerous speeches, comments, and support for the protests which burned police stations and businesses throughout the country for months, even while the riots were going on. And….apparently nothing they did was wrong. Repeatedly, over and over support for protesters who burned down police stations, assaulted federal court houses, and more.

    But if Trump does the same, it’s impeachable?

    The double standard is too much to bear

    1. Even saying “if Trump does the same” is too much of a concession. They explicitly endorsed the riots, and enabled them. All Trump did was speak to a legal assembly.

      1. Althouse’s list of the seven most violent things Trump said in that speech makes it crystal clear why these hatemongers talk lots about what Congress can do, but never about what Trump said: https://althouse.blogspot.com/2021/01/the-7-most-violence-inciting-statements.html

    2. Let’s review some of the things that were said about the riots.

      When violent mobs were tearing down statues.
      Nancy Pelosi: “People will do what they will do”

      CNN’s John Lemon:
      “And let’s not forget if anyone is judging this, I’m not judging this,” Lemon said as CNN cameras rolled with footage of riots in Washington D.C. and Los Angeles. “This is how this country was started.”

      Nikole Hannah-Jones:

      ““Destroying property, which can be replaced, is not violence,” Hannah-Jones said on CBS, to which the anchors offered no challenge. “It’s a great point that you make, Nikole,” CBS’s Vladimir Duthiers replied.”

      And of course AOC.

      “The whole point of protesting is to make ppl uncomfortable.
      Activists take that discomfort w/ the status quo & advocate for concrete policy changes. Popular support often starts small & grows.
      To folks who complain protest demands make others uncomfortable… that’s the point.”

  15. Fascism everywhere and communism nowhere…yet billions of private property destroyed by false narratives…silencing of anyone to the right of Troysky….honestly I’m find with impeaching the SOB..but it can’t stop there..all politicans who cheered on the commie thugs last summer need to be impeached…as for Volokh..you do have s weird focus on fascism but not the threat of communism isn’t a few crazies but an organized movement that for years has grown in academia, the media, and now big tech…

    1. Commie thugs from Biden counties that make up 70% of the country’s GDP. Do you fascists offer zoom classes on capitalism? I want to turn California into a booming state, the flyover capital of America with the biggest trucks and MAGA flags.

      1. California was booming. . . Supplied over 85% of the produce eaten in the entire country.
        The criminal Dems have ruined that, as they ever do, by allowing Criminal Trespassers to live there.

      2. Maybe not anymore, world’s richest man just moved from California to Texas, and he his bringing a lot of his businesses with him.

        1. A couple of points. First, Tesla already had businesses in Texas, and will continue to operate in California. It’s not at all clear whether Musk will be “bring a lot” of businesses with him, or whether this will have any measurable impact on the state economy. Second, one of Musk’s primary reasons for moving is that Texas does not have a state income tax or personal capital gains tax — his move makes economic/financial sense for him, rather than political sense. Finally, he’s in Austin, the center of liberal life in Texas, so he’s still living in the midst of “commie thugs.”

      3. Big, bloated government grows up around success; it does not spawn it.

      4. “Commie thugs from Biden counties that make up 70% of the country’s GDP.”

        You need to learn the difference between where wealth is created, and where it’s reported.

  16. When will you be blogging about VP-elect Harris’ incitement of rioting in U.S. cities by groups in including antifa and BLM?

    1. When she actually does it maybe

      1. Okay, well, she did – waaaaaay back in 2020.
        Cried about bail money for the rioters, as well.

        If you only had the focus of the average goldfish. . .

  17. Anybody believe that the way Biden wants to start his presidency is with the Senate paralyzed by another impeachment trial? Remember last time, when senators weren’t supposed to be using their phones on the senate floor and no other business was done until the trial was over? Same rules next time.
    Don’t expect McConnell to do Biden a favor by getting a trial done in a hurry before January 20.
    But hey, fuck your first hundred days Joe, we’ve got political opponents to persecute.
    It’s also a great way to show how much your presidency is about healing and unity, and how you’re the President of all Americans.

    1. I saw a quote from Biden today that he didn’t think it was worth it.

      Even the dementia ward knows its a dumb idea.

      1. That does not say that he won’t ask the FBI to issue an arrest warrant on January 21.

    2. Even an apolitical person would want to bring that guy to justice. Nothing political about basic accountability.

      1. But Biden has been given a pass from everyone, so there will be no accountability.

    3. McConnell says they can’t even start a trial until inauguration day.

  18. “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. ”
    I am curious about this assertion. Why would that be so? Assuming it is correct, would this also be an abuse of power:
    “Using the powers of the presidency to promote socialism —even legal powers—would be an abuse of power, and a menace to the constitutional order. ” ? If not, why not?

    1. Because advocating for what you stupidly call “socialism” is advocating for a set of economic policies which need to be enacted through our normal legislative process.

      OTOH, promoting fascism is advocating for a political system that is inimical to the Constitution and democratic government.

      Clear?

      1. Why do you think I am calling something “socialism’ stupidly?

        To you point- socialism is not merely”economic policies” – it requires abolition of private ownership of the means of production, a right protected by the constitution. And in all its implementations in practice, the result was undemocratic. Clearly, advocating for it is inimical to the Constitution.

        Presumably, a President who vows to “do everything I legally can ” to promote Fascism would do so by advocating that socialism “be enacted through our normal legislative process.” – just as you would have in our Socialism hypothetical – how is that different?.

        But let’s make this clearer still by focusing explicitly on political systems – would advocating for libertarianism as our political system be an abuse of power?

        Or, if “democracy” was the focus of your argument – could Wilson have been impeached had he been more vocally opposed to women’s suffrage? How about antebellum Presidents supportive or not opposed to slavery?

        1. It’s pretty simple, zztop8970. You (and your political tribe) just need to settle on one definition of socialism, which the Right tends to use bait&switch fashion. On the one hand, you freely label economic policies as socialist which come nowhere close to government ownership of productive means and property – the ACA’s regulation of the private insurance market being one example.

          Having thus labeled your enemies “socialists” with a thousand spittle-spraying rants of this type, you then feel free to revert to the stricter definition whenever convenient, particularly once the label sticks. Obviously you see the confusion that creates. Use the term honestly and that confusion goes away. That’s my recommendation.

          1. Is the military a socialist institution? I have seen a lot of pro-socialism people claim that it is, along with public roads and similar infrastructure. What single, clear definition of socialism have its defenders adopted?

          2. Please engage with my arguments, not with those of what you imagine my “political tribe” to be. I am quite aware of what Socialism is, see my post above.

            1. The obvious response, again, is that “socialism” has a wide variety of flavors some of which are perfectly consistent with a modern democracy (see Sweden, Denmark, etc.). See Brittanica discussion of socialism (noting ownership OR control, which is a distinction, particularly given: “Other socialists, however, have been willing to accept or even welcome private ownership of farms, shops, and other small or medium-sized businesses.”).

              Another obvious response, just because you believe “socialism” means “abolition of private ownership of the means of production” does not mean that’s how it is most commonly understood today, even if your understanding is the historically more accurate term.

              From a Gallup poll in 2018:

              “23% in U.S. understand socialism as referring to some form of equality
              17% say socialism means government control of business and the economy”

              So someone advocating “socialism” may mean democratic socialism or even just a general sense of “equality” whereas fascism is not subject to the same varied, ambiguous, and (sometimes) innocuous meanings.

              In short, as grb said, pretending “socialism” has one meaning incompatible with democracy, then calling the ACA socialist is bait-and-switch.

              (*I am not a socialist by pretty much any definition other than the MAGA crowd, all-encompassing definition of the word.)

          3. On the one hand, you freely label economic policies as socialist which come nowhere close to government ownership of productive means and property – the ACA’s regulation of the private insurance market being one example.

            On the other hand, some of the same people who attack the Democrats for being socialist are actually calling to nationalize twitter.

          4. Let’s try this: Socialism is government control of the means of production, whether it’s accomplished by openly claiming ownership of those means, or merely taking control of what is done with them while permitting nominal private ownership.

            “Ownership” after all, is nothing more than a bundle of rights concerning property. Alienate enough of those rights from the “owner”, and in a practical sense you’ve transferred “ownership”, even if you nominally didn’t do so.

  19. Biden is off to a very bad start. He said he wanted to unify . . . instead he just called half of America Nazis, which is more divisive than anything Trump did and essentially encourages violence and murder.

    1. So encouraging violence and murder is only OK if Trump does it?

    2. He called half of America Nazis??? I assume you have a cite for this. Any major public figure who has called 175 million people Nazis presumably made the nations news doing so.

    3. Now that Biden has lost M L, who else does he have left?

      1. LOL. Right? Biden’s done before he even started.

  20. Wouldn’t it be better for Congress to censure Trump, based on his Georgia telephone call and his march-on-the-Capitol speech? Whether or not impeachment is warranted, it might well be counterproductive because one can’t have a trial before he leaves office, a trial after he’s gone would be constitutionally iffy, there’s no chance of a 2/3 majority of the Senate voting in favor, and it would further polarize an already-polarized country. A motion to censure wouldn’t require a trial, it might garner substantial support from the Republicans in the House and the Senate, there would be no need to debate the merits of Josh’s impeachment arguments (since the phone call and the speech, regardless of their legality, showed extremely poor judgment), and it might help to unify the country. The motion to censure Joe McCarthy in 1954, after the army fiasco, passed overwhelmingly; the same might be true now.

    1. Censure is meaningless at this late date.
      If he did something criminal, then he can be arrested in two weeks and prosecuted. Anything else is just so much political posturing.

      1. If he did something criminal, he can be arrested and prosecuted regardless of whether he’s impeached. I’m not suggesting that censure is an preferable alternative to prosecution; I’m suggesting that it’s preferable to impeachment. Impeachment, even more than censure, is posturing, but it’s divisive and may well be counterproductive. Censure, by contrast, might produce a broad coalition of Democrats and Republicans willing to condemn Trump’s conduct, which in my view might move us in the direction of a more traditional and productive 2 party system.

  21. So we have already tossed political norms out the window to “get” Trump and with about 11 days left now we are going to chuck the First Amendment under the bus too. OK, I’m sure there will be nothing negative which will result from that.

  22. RE: “Every president has partisan adversaries who who would be happy to “get him” if they can. Nonetheless, slippery slope fears about impeachment are misplaced.”

    The problem is: if you allow one minor slippery-slope argument, next thing you know you’ll have another, and soon, everyone will be making slippery-slope arguments about everything.

    1. This is slippery slope inception. All slopes are slippery; where we slip one we slip all!

  23. Professor Somin worries about a slippery slope. Did Ronald Reagan’s female employees worry about a gipperly grope?

  24. Question: Was Pelosi’s call to the Chair of the Joint Chief proper? an attempted coup? or just outrage run amok.

    1. You need to add “prudent” to the list.

    2. It was incitation of a military coup, and thus sedition. All the pro-sedition-charges and pro-impeachment people will be along momentarily to demand the House remove her from office so she can be criminally charged and imprisoned.

      1. She should definitely be charged, the moment the Republicans get back into power. The Democrats started this bullshit of criminalizing political opposition, so they need to get a good helping of their own back.

  25. Ah the good ol VC. As far as I can tell, the knuckleheads on here are at least authentic and not paid shills. That, at this point, is the best thing it as going for it.

    BTW, Trump’s Rasmussen approval rating as of January 8th…48%

    Streisand Effect going on here with silencing him.

  26. Know this, if Trump had said, “We are burning this mother fucker down, follow me. No justice, no peace” then if even 5% of the massive crowd on hand had listened, they’d have seized everything. It would be like the Bastille falling.

  27. High Crimes… high being an adjective that modifies crimes. Thus, a crime and more specifically one that is of the subset if crimes that are characterized as “high” (but still must be a crime) is required for a legitimate impeachment.

    Misdemeanor… an already defined term.

    If we accept arguments that say “These words mean whatever Congress wants them to mean” then we must accept any argument that says Congress can read any word, passage, etc. in the Constitution to mean whatever it wants it to mean at any time. Thus, Congress shall make no law… means, well… depends on how much Congress feels like censoring speech at any given moment in history.

    To accept broad readings requires us to accept broad readings of all parts of law. There is no logical, rational reason not to. It is the very antithesis to an actual Constitutional system.

    Don’t read this as a defense of Trump in general. Glad he will be gone soon. But either we have laws written in words we all can generally understand without seeking to obfuscate… or might makes right.

    1. sparkstable, “virtual reality” isn’t a subset of reality, but that doesn’t mean it has no set meaning.

  28. We haven’t forgotten that the Libertarian vote in Georgia forced a senatorial runoff election. Otherwise the Republicans would have the outright majority in the Senate. I hope making a point was worth it

    1. Half the purpose of the LP today is just acting as a spoiler. They hardly even bother pretending otherwise.

      1. They absolutely say otherwise. Your “everyone is acting in bad faith except me” line was tired 10 years ago. No, the GOP did not oppose Trump and try to undermine him. No, the Libertarians are not secretly trying to act as spoiler. Just stop.

  29. I am increasingly inclined to think that key Trump actions, including directing his followers to enter the Capital, represented conduct, not speech, when taken in context, and hence is simply not protected by the First Amendment. I think that Professor Blackman is simpy wrong in his First Amendment argument.

    Trump directed and controlled an informal network. The informality of the network does not shield him from responsibility for ordering it into action.

    1. Except, of course, Trump never actually directed “his followers to enter the Capital [sic]”. He suggested they march “to” the Capitol.

      1. March to the Capitol for what purpose? To Stop the Steal [sic]!

  30. Folks splitting hairs about incitement at Trump’s rally look right past better evidence. Trump has been lying, lying, lying for weeks, saying election fraud cost him a legitimate victory. The lying kept up after widespread, exhaustive, investigations, recounts, and court cases confirmed Trump’s loss. That deliberately continued lie is incontrovertible evidence of incitement.

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