Impeachment

Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol

A response to Joshua Blackman and Seth Tillman

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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.

 

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  1. How much longer will you choose to be associated with this rube-lathering enterprise, Prof. Adler? You deserve better colleagues.

    Move toward the light.

    1. I would prefer not to encourage further development of media bubbles. Please stay, Prof. Adler. And keep this blog on Reason, too.

      1. I believe it would be far better for Prof. Adler to contribute by finding new colleagues — the Balkinizers, for example — rather than to remain mired in this flaming shitstorm.

        1. While I generally disagree with you, I checked out the Balkanizer blog. I’d rather exchange ideas with people I disagree with then waste time in an echo chamber.

  2. 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 not to disqualify him from holding future office.

    Have you thought this through? So any political speech by the president can be the basis for impeachment? Proposing a tax cut, proposing abolishing affirmative action, proposing nationalizing health care?

    Or, for that matter, saying that WW 1984 is a lousy movie?

    Bizarre.

    1. You only have to fear that 2/3 of the senate would go for it.

    2. Let’s play a game of pretending that Trump’s behavior is entirely consistent with normal politics, and create partisan strawman arguments!

      Oh, I see you’ve already begun.

      1. You are either abysmally ignorant of how the law works, or willfully ignoring it.

        We are a nation of laws. Laws mean neutral principles which are applied evenly to everyone. “Trump Bad” is not a neutral principal.

        Prof. Adler posited that the First Amendment does not constrain the impeachment power. That is a neutral principal, which leads to the results I indicated.

        I stated in the other thread that I believe Trump can be impeached for sedition. I would support it, if not for the fact that there is little time to do it.

        But I am not willing to ditch the Constitution in the process of defending it.

        Just as a criminal defendant enjoys the procedural rights in the 4th, 5th and 6th amendments, no matter how heinous his crimes. “But his crime was really outrageous” does not get the Govt. out of those rights.

        1. Impeachment sooner is preferable to impeachment later. However, the clock does not run out when Trump leaves office. Upon conviction he remains subject to disqualification to hold future federal office.

          1. Trump could win in 2024. That is what impeachment is about.

    3. I think you’re mistaking Professor Adler’s argument. He said,

      “[T]he First Amendment imposes no constraint . . . ”

      He did not say the Constitution as a whole imposes no constraints on the impeachment power. In fact, the constraints on the impeachment power are in the impeachment clause itself.

      The examples you gave would not rise to the level of “High crimes and misdemeanors”. I am comfortable saying that a Congressman who voted to remove a President because the President said that WW1984 was a bad movie would be acting in violation of his oath, because the Congressman would be violating the impeachment clause, not because he would be violating the First Amendment.

      1. Let’s say he violated a criminal code that the Supreme Court has held to be unconstitutional under the First Amendment. Like the Communications Decency Act of 1996. Would the Congressman violate his oath if he impeaced the president for commiting those crimes?

        1. No. Every congressman is free to decide, for themselves, what constitutes an act worthy of impeachment. If you disagree with the legislature, you vote in different members.

          That’s how it works.

          1. ” Every congressman is free to decide, for themselves, what constitutes an act worthy of impeachment. ”

            Exactly. Its a pure political question. Un-reviewable by a court.

            1. Those are not the only two options.

        2. Not if the actions were a “high crime,” notwithstanding they can’t be a statutorily-enforced crime.

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

    The unassailable answer to both posts on this topic.

    1. Did Justice Ford write the as the majority opinion, or was Justice Ford writing the dissent?

  4. So Progfessor Adler, this might be a dumb question: What specific high crime or misdemeanor would you impeach POTUS Trump for?

    1. Maladministration. Negligence of duty, in both inciting the crowd, refusing to call in the National Guard, and in gleefully enjoying the images of carnage on television.

      The last bit might be a bit of a stretch, but is oh so emblematic of the times.

      “Why are people angry at me? It looks cool on TV, and it shows that they like me. They really, really like me!”

      1. US Capitol Police rejected multiple offers from federal law enforcement to help deal with pro-Trump mobs

        Basically a case of “How dare you not force them to accept National Guard they didn’t want, and then fail to teleport them there instantly when the local government changed their minds?”

        1. Oh Brett.

          I am quite sure that the numerous resignations coming from the White House are just people … who think Trump is very fine person who did everything right, and was thwarted by the Capitol Police.

          Good for you buddy! You keep on believing what you need to. 🙂

          1. No, I think they’re people who can reduce their future risk of being subjected to show trials. And they’re wrong about that.

        2. US Capitol Police answer to the federal government, not the local government. You are pointing your finger at the wrong people.

      2. Maladministration? Well alright then. That will make for some interesting future impeachment trials.

      3. Inciting the crowd was reckless, but I suspect he could have gotten away with it.

        But refusing to call in the National Guard and enjoying the show paramilitaries went looking for legislators to kill.

        That I think is both impeachable and something that the GOP Senators who could have been executed may vote to convict for.

        1. My understanding from what I’ve read, and it could be wrong, is that the mob was only planning to take hostages, not execute anyone.

          So, those GOP senators may be willing to give him a pass on this one. No harm, no foul. Right?

    2. Maliciously undermining our democratic institutions by deliberately lying about the election results resulting in mob violence.

      1. So, doing what the Russian collusion hoaxsters did is impeachable?

  5. Obvious points are obvious.

    Nevertheless, it’s good that you said it. Thank you, Prof. Adler.

    1. Agree they’re obvious. But someone more articulate than I who’s more schooled in the law needs to say them.

      So, +1 on the thanks.

  6. Congress can impeach any federal officer for anything they want, seeing as how “high crimes and misdemeanors” is nowhere defined.

  7. In fact, technically, they can do it regardless of whether HE did it, as actual innocence isn’t really a defense here.

  8. The last time around these threads showed terrific confusion about what ought to constitute an impeachable offense. I doubt anything has cleared that confusion in the interim.

    I have a suggestion. Start with the notion that, “High Crimes and Misdemeanors,” whatever they are, must be recognized as a special constitutional term with its own meaning. Then ask yourself what meaning you could give that term to keep it as close as possible to the goals the nation can legitimately expect from presidential service. What would you come up with?

    My suggestion is to define the term to mean conduct which notably obstructs or damages constitutional order. Impeachable offenses, then, would include offenses against elections, offenses against the other branches of government, or obstruction of their ability to perform their proper functions, offenses against the separation of powers, misuse of appropriated funds. Stuff like that. All ought to be impeachable offenses, even if there was nothing explicitly criminal in the conduct.

    Likewise, criminal conduct which does not threaten constitutional order is at least possible to imagine, and if it occurs might not warrant impeachment. Trump’s hush money to a porn star might fall in that category.

    In short, put the emphasis in the impeachment standard on a finding of damage to the constitutional mission the People decreed for their government. No president should be allowed to do such damage on purpose and get away with it.

    1. I don’t question that if Trump HAD directed a mob to attack the Senate building, that would be impeachable. I just find the claims that he DID direct a mob to do it ludicrous. Telling people to peacefully walk somewhere isn’t incitement.

      1. “Telling people to peacefully walk somewhere isn’t incitement.”

        Yes, folks, he genuinely is that stupid.

        1. Brett wasn’t there personally, so he can’t verify that it wasn’t just a misunderstanding and that the people didn’t, in fact, walk there peacefully for a “college festival” party.

          1. I wasn’t there, but the speech was recorded, so I might as well have been.

            There was no incitement, unless you’re setting the bar for that terrifyingly low.

            1. That speech was just full of smoking guns, helpfully identified by Ann Althouse: https://althouse.blogspot.com/2021/01/the-7-most-violence-inciting-statements.html?m=1

              Isn’t it obvious that telling Republicans to “get tougher” is a blatant call for violence? (Quite unlike Barack Obama’s calls to “punch back twice as hard” and “bring a gun,” which are just Obama’s way of saying, “Come, the, let us reason together.”)

              1. “Come, *then*”

                (I was typing on my phone. Always a mistake when there is no opportunity to edit completed posts.)

        2. Brutus is an honorable man. So are they all honorable men.

          Marc Antony had no idea how to incite violence.

          1. Will no one rid me of this troublesome Congressional Vote Certification?

        3. Yes, he is so stupid that he thinks that when Trump called on his followers to act “peacefully and patriotically,” he meant for them to act peacefully and patriotically. All the brights know that when Trump says, “peacefully and patriotically,” he means, “Burn the morherfucker down.”

  9. I remember when I first started following this blog and prof adler was leading the attack on obamacare and thinking he was far too self-satisfied with his arguments and one of the fringe thinkers of this group. And now look where we are. Thank you for setting the record straight professor.

    1. It turns out he’s a Responsible Libertarian.

  10. I remember back to the days of Juan non-Volokh successfully pissing off Brian Leiter. Oh, for the good old days.

    1. That was pretty awesome.

      Then again, the bar for “pissing off Brian Leiter” isn’t even off of the ground.

    2. I remember the days of Juan non-Volokh, and I remember when he (or possibly she) dropped the pseudonym and started posting under their own name. But I don’t remember who Juan turned out to be.

      And this is what it’s become – old dudes reminiscing about the bygone days of website comment sections from 2002.

      MTVCGA.

      1. He revealed his identity in 2006 and recently authored the very same article we are commenting on.

  11. “…one of the articles of impeachment brought against Andrew Johnson concerned his irresponsible rhetorical excesses.”

    So, what happened with that Johnson impeachment, anyway?

    1. The Congress wussed out, and while Grant did a lot of good things, the incalculable damage of the Johnson administration allowed the terrible racial issues to metastasize and grow in this great country, remaining a blot that continues to plague us to this day.

      That’s the short version.

      1. According to my calculations, Johnson’s acquittal gave him ten extra months apparently to do the “incalculable damage” Grant wasn’t able to wipe out in two terms.

    2. “That’s the short version.”

      You couldn’t write a “short version” of the first letter of the alphabet.

    3. “So, what happened with that Johnson impeachment, anyway?”

      Acquitted.

      That’s the short version.

  12. Considering the first time Trump was impeached it was for making a phone call would only be appropriate for the second time the left performs a similar stupid action it be for making what was an effective public advocacy speech.

  13. I think there is still enough time before the inauguration for Trump to fire up his people regarding another phony impeachment, incite them to break into the Capitol again, and get impeached a third time.

    C’mon Mr. President …. you can do this!

    1. QBT, what Trump does not have time to do is to put beyond reach the all-time impeachment record for a single president. So he’s a loser there too.

      1. I see your point, but he’s only tied for third at this point with one. Maybe he’ll score and extra point and make it to 2. I can’t imagine what it might take to make it to 3.

        Meanwhile, the hyper-partisanship of the current era likely means that anytime the white house is occupied by the opposite party of the house majority articles of impeachment can easily pass. And the Senate precedent of “la la la la la I can’t hear you” means that future impeachments will take up little of the senate’s time implies that we could easily see three to eight impeachments in the first term of future presidents.

        Which isn’t to say that the Trump impeachment was unwarranted, just that it will likely usher in more attempts in the future. It’s like we’ve just exited the “dead ball” era of baseball when “Home Run” Baker hit an amazing 9(!) home runs in a single season.

  14. So what are all the “Trump totally incited it” people doing now that there is clear evidence that at least one BLM/SJW/Antifa type was leading the invasion of Congress and telling the rest of the crowd to join him? That is, that a Trump opponent with a long rap sheet actually incited imminent lawless action?

    Where are the demands to file seditious conspiracy charges against him?

  15. I know the law professors like to debate the legality of impeachment, but 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. What?

      Censure and Move On?

      That’s so nineteen nineties.

    2. An impeachment trial does not become moot when Trump leaves office. Upon conviction he is subject to disqualification to hold future federal office.

      1. Not guilty, consider. After Trump is already safely out of office, might R senators decide the path of political safety requires a vote to convict? After all, whoever votes to acquit can be held hostage politically for whatever nut-job, quasi-treasonous antics Trump might organize—maybe with help and money from foreign backers. The best way a Republican senator could be sure not to sink his own fortunes in Trump’s bottomless well of malign happenstance is to vote against Trump.

        Also, any among the customarily-timid R senators who still preferred not to go on record could find an easy way out. Just don’t be there. Let the Ds get a two-thirds majority by default. Then, under their own majority leader, Democrats could vote by simple majority to deprive Trump of any future political office, giving pusillanimous Rs the best of both worlds—no risk of being tied to Trump’s loose canons, and no record of disloyalty either.

        To make it more convincing, fearful Republicans could all schedule real appendectomies to cover their absences. To err on the safe side, Lindsey Graham might elect for something more visible to the public, maybe a minor amputation.

        1. 74 million people voted for Trump in 2020, and even now his approval rating nationally remains over 40%, according to Fivethirtyeight. You and I may think he engages in quasi-treasonous activities, but how many people in Oklahoma and Alabama think that? Like it or not, a large minority of the population — a majority in some red states — would be outraged if the Senate were to bar him from running for office, and in my view it’s inconceivable that a 2/3 majority of the Senate would vote to do so.

          1. California — I figure the Ds right now have about 4 Rs who would vote with them for removal: Murkowski, Collins, Sasse, and Romney. Assume 16 Republicans prefer to sit it out, rather than be there. At that point it takes only 2 more to cross over. Maybe incumbent Senators who will be up for reelection in Wisconsin and Pennsylvania (states Biden won) would give it a thought. But if 19 Rs would decide not to be there, the Ds and defectors probably already have two-thirds.

            So I guess that’s still a long shot. But maybe not, “inconceivable.”

            With a vote to impeach already passed, however, one more violent incident from Trump’s base and I think he would be out of office in a matter of hours. I take some reassurance from that, and suggest it furnishes an excellent reason to vote for impeachment as soon as possible in the House.

  16. More spasms following the sit in at the shibboleth.

  17. “Congress shall make no law…”

    Neither impeachment by the House nor trial by the Senate is a law. And they’re governed by the plain text of the Federal Constitution, which Congress also did not make.

    Mr. D.

  18. R) So now the president can be impeached for giving a speech?
    D) No, for giving a speech which incites violence by lying about the legitimacy of the election.

    R) So now the president can be impeached for giving a speech in which he expresses his opinion that the election was illegitimate?
    D) No, for lying about the legitimacy of the election.

    R) So now we cannot question the legitimacy of the election?
    D) NO, the you can say what you want, but the president cannot question the legitimacy of the election.

    R) What if the election was conducted illegitimately?
    D) The president cannot question the legitimacy of the election.

    R) New Rules? Does this apply to Speaker of the House, Senate Majority leader? Other office holders?
    D) The president cannot question the legitimacy of the election.

  19. Those patriots were our Pro-Democracy heros like the ones that took over the Hong Kong Parliament. They are defending us against the neo-Marxist tyrants who cheated to control the three branches of government.

  20. Trump is gone….and things will go back to the same old same old..except the clock to a monetary crisis is almost up

  21. Professor Adler,

    I think there’s a good argument to be made that President Trump didn’t merely incite his followers to attack the Capitol. He ordered his followers to attack the Capitol. He used his followers as instruments of his design. This makes what he did conduct, not speech at all, and wholly outside First Amendment protection.

    If President Trump had shot at the Capitol with a voice-activated gun, the use of voice as the instrument to affect the result would obviously not bring such conduct under First Amendment protection.

    Same with voice activated followers.

    When a Mafia don says we’d be better off if so-and-so sleeps with the fishes, he is not engaging in analysis or advocacy, he is issuing an order. The law can hold him responsible, as the leader of the organization, for the followers’ carrying the order out. Intent and the existence of a command structure can be inferred from evidence.

    Same here.

  22. I think there is still enough time before the inauguration for Trump to fire up his people regarding another phony impeachment, incite them to break into the Capitol again, and get impeached a third time.
    C’mon Mr. President …. you can do this!
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