The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I would like to offer a brief response to my co-blogger Joshua Blackman and Seth Tillman's post arguing that Congress may not impeach and remove President Trump on the grounds of incitement for his remarks on January 6 preceding and during the electoral count in Congress. I think this claim is wrong both as a matter of existing law and original constitutional meaning.
As I understand their argument, it is that if Trump's speech does not constitute incitement for First Amendment purposes, then Congress cannot impeach President Trump on grounds of incitement. I believe this argument is wrong, unless reduced to an irrelevant semantic claim.
Before explaining my reasons, let me be clear that I understand us to be talking about what it would be legitimate for Congress to do under the Constitution. In other words, could a member of Congress vote to impeach or convict the President on these grounds consistent with their constitutional oath. I add this qualification because I do not understand Blackman and Tillman to be making any claim that an impeachment and conviction on this basis would be legally invalid or challengeable in Court. After all, Congress, and not the courts, is the ultimate judge of what constitutes an impeachable offense.
To start, I will assume, for the sake of argument, that nothing President Trump said this week would constitute actual incitement under existing First Amendment doctrine. That is, however awful and unpresidential his comments may have been, I will accept for the sake of argument that they did not pose a sufficient risk of inducing imminent lawless action of the sort necessary to sacrifice First Amendment protection. Would that mean he could not be impeached for those remarks? Not at all.
As others have explained at length (including my co-blogger Keith Whittington and Timothy Sandefur), a president may be impeached for lawful actions. The phrase "High Crimes and Misdemeanors" was never understood to be limited to actual crimes, whether at common law or as defined by the U.S. Code (the latter of which scarcely existed at the time). It has always been understood to include abuses of power and other actions that are wrongful when committed by a public official, even if legal. See, for instance, Alexander Hamilton's comments in Federalist 65. So whether or not Trump's comments would be criminal under federal law is irrelevant to the question of whether or not they could constitute an impeachable offense.
But what about the First Amendment? Does it matter if we assume that Trump's speech would be protected? Not at all.
The fact that speech may be protected when uttered by a private citizen does not mean it is immune from government sanction. To see this point, just think about how the First Amendment applies to public employees. The Amendment does not generally protect speech uttered in the course of one's employment, and even if a government employee engages in protected speech in a private capacity, off the job, on a matter of public concern, it may still be sanctioned if the government has interests that sufficiently outweigh the employee's interest in speaking freely. So, for instance, if a police officer engages in otherwise protected speech off-the-job, it could still result in that officer being fired if the speech might compromise the ability of the officer to perform his or her job, or call the officer's fitness into question. So, while racist speech may be protected, police departments can still discipline officers for off-duty racist speech.
The point here is that the First Amendment does not protect the speech of government officials and employees the same way that it protects private speech, and the fact that the government cannot criminalize certain speech does not mean that the government may not sanction government officers or employees for otherwise protected speech. So were Congress to conclude that the President's remarks constituted an abuse of power, a dereliction of his responsibilities, or a betrayal of his constitutional oath, it would not matter that the same remarks, if uttered by a private citizen would be protected by the First Amendment.
But, Blackman and Tillman might respond, Congress can impeach the President, but just not for incitement. The claim here seems to be that if Congress is going to use incitement as a basis for impeachment, it can only do so if the speech in question satisfies the definition of incitement under existing First Amendment law. If this means Congress should just use another word, it's a semantic claim of no real relevance, because Congress would still be impeaching Trump over the same remarks in question. But I don't think even this semantic point has much force. Just as "High Crimes and Misdemeanors" need not be actual crimes or misdemeanors, "Incitement" as an impeachable offense need not have the same definition as "incitement" for the purposes of criminal law or the First Amendment. There is nothing in the Constitution or its history that would impose such a constraint.
And even if one thought that speech short-of-legal incitement was not impeachable, why would the Supreme Court's 20th century understanding of incitement be controlling? Why would we not consider the understanding of incitement to riot at the founding? There's a serious argument, at least where the threat of riot was concerned, that the founding era understanding accepted a broader definition of incitement than current Court doctrine. And let's not forget that we have seen public officials impeached for speech that would be protected today, and one of the articles of impeachment brought against Andrew Johnson concerned his irresponsible rhetorical excesses.
The bottom line, as I see it, is that the First Amendment imposes no constraint on Congress's ability to impeach and remove President Trump nor to disqualify him from holding future office. I agree with Michael McConnell that "there is no doubt that inciting a crowd to disrupt the certification of election results is an impeachable offense." If members of Congress concur that Trump's remarks this week constitute and evince the sort of behavior that poses an unacceptable threat to our institutions and a betrayal of his constitutional oath, they should act accordingly and swiftly. In doing so, they would be acting in accordance with their constitutional oath, not violating it.