Impeaching Trump for his Role in Inciting the Attack on the Capitol Doesn't Violate "Established Free Speech Rights"

A rejoinder to Josh Blackman and Seth Tillman.


President Andrew Johnson.


In a recent post, co-blogger Josh Blackman and Seth Tillman double down on their earlier claim that impeaching and convicting Donald Trump for his role in inciting the attack on the Capitol would violate his First Amendment rights. They recognize that the Senate isn't necessarily bound by the Supreme Court's jurisprudence on this topic. But they continue to insist that conviction would go against "established First Amendment rights."

In reality, it would do no such thing. As critics like Jonathan Adler, Andrew Koppelman, and myself pointed out in response to Blackman and Tillman's earlier post, established First Amendment law does not protect high government officials from being removed from their positions based on their speech. If it did, Trump would have violated the First Amendment himself on each of the many occasions when he fired a cabinet member or other high-ranking subordinate for expressing views the president didn't like. And if officials can be removed from their positions for such reasons, there is equally no First Amendment constraint on using the Senate's power to bar impeached and convicted officials from holding office in the future.

In my earlier post on this topic, I also noted some absurd and dangerous consequences of adopting the Blackman-Tillman position, and addressed concerns that my own view could lead to a dangerous slippery slope of its own.

In their most recent piece, Blackman and Tillman fail to address the fundamental flaw in their position pointed out by critics. But they do try to buttress their argument by citing the precedent of the impeachment of Andrew Johnson in 1868. They are right to point out that one of the eleven articles of impeachment against Johnson targeted speeches in which he "attempt[ed] to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof." And it is also true that some of the senators who voted to acquit claimed that conviction on this article would violate Johnson's First Amendment rights.

But I am skeptical that this does much to help Blackman and Tillman's defense of Trump against impeachment today. As they also point out, many other members of Congress rejected the position that Johnson's First Amendment rights would be violated in any way by conviction. And this group is, on the whole, a far more impressive one than the coalition of white supremacist Democrats and sometimes corrupt Republicans who just barely managed to get Johnson acquitted (the 35-19 vote for conviction was just one short of the 2/3 majority required).

As Blackman and Tillman note, the pro-impeachment camp included such luminaries as Senator Charles Sumner (a longtime leader of the antislavery constitutional movement whose ideas underpinned the Reconstruction Amendment), and Rep. John Bingham, perhaps the single most important framer of the Fourteenth Amendment. If we're going to reason based on authority and precedent, I'll take Bingham and Sumner over Johnson's defenders any day of the week.

More generally, the narrow acquittal of Johnson is no longer seen in the positive light that many viewed it from the late 19th century to the mid-twentieth (when John F. Kennedy praised it in his book Profiles in Courage). Today, many (though, of course, not all) historians and legal scholars recognize that Johnson actually deserved to be convicted because of his efforts to sabotage Reconstruction and maintain white supremacy in the post-Civil War South. This was the broader issue underlying the specific details of the charges against him. Historian Annette Gordon-Reed, author of a  biography of Johnson has a helpful summary:

The confrontation between Johnson and the men who wanted to remove him from office, the so-called Radical Republicans, was a fight over the future direction of the United States; a fight with implications that reverberate to this day. Johnson's real crime in the eyes of opponents was that he had used the power of the presidency to prevent Congress from giving aid to the four million African-Americans freed after the Civil War. Johnson's deep antipathy toward black people, not his view of the Constitution, guided his actions…

Johnson had opposed slavery because he thought it hurt the class of poor whites from which he had come. Blacks were to be freed but left to the mercy of white Southerners. His plan of action—to put whites back in charge in the South—set him on a collision course with the Radical Republicans, who believed that the South must be transformed to incorporate blacks into American society as equals….

Johnson opposed congressional measures adopted to try to help African-Americans become productive members of society with the dignity accorded to whites. He opposed black suffrage, land reform and efforts to protect blacks against the violence that Southern whites unleashed upon them after the war's end.

Johnson had repeatedly used his powers as president to undermine congressional efforts to protect the rights of recently freed slaves and other blacks in the South. His apparent violations of the Tenure of Office Act (the immediate target of most of the impeachment articles) were part of an effort to replace officials willing to implement Congress' laws with ones he hoped would be inclined to support his own efforts to sabotage them. Whether or not he violated a specific valid law (Johnson's defenders claimed the Tenure of Office Act was unconstitutional, a view eventually backed by the Supreme Court in 1926), Johnson had grossly abused his powers and richly deserved to be removed from office (for good discussions of the reasons why impeachment for technically legal abuses of power is permissible, see analyses by  Keith Whittington  and prominent conservative legal scholar Michael Stokes Paulsen).

This doesn't mean every single article of impeachment lodged against Johnson was justified. In my view, Article 10 (the one focused on his speech) was weak, and probably deserved to be rejected; in the end the Senate did not even vote on it. But Johnson's statements attacking Congress were much less dangerous and egregious than Trump's more recent ones. Among other key differences, Johnson's remarks were not made to a crowd with lots of known violent elements that were about to march on the Capitol; they also didn't come in the aftermath of a long history of justifying and praising violence by his supporters.

Be that as it may, the acquittal of Andrew Johnson was not a valuable precedent to be followed, but a shameful episode in American history, where Congress let a malevolent president get away with egregious abuses of power. It should not be used to help another malicious president get off the hook today.



NEXT: On the Appeal of Trump to Trump Fans

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  1. I agree impeachment is a political question, and congress can impeach the president on whatever reasons they want, including as in this case political reasons.

    1. Prof. Somin clearly explains why Prof. Blackman and Prof. Tillman are employed by fourth-tier law schools. Anyone attending or who has attended those schools should contact the schools for and politely ask for a full refund.

      1. Perhaps Blackman should consider moving up in the rankings. Chapman may be looking to hire. If Blackman were to go to Chapman from South Texas, it is likely that the intellect level of both would rise.

      2. Nah Somin clearly shows why HE should be employed by those 4th tier schools and Blackman and Tillman should go up to the 1st tier.

        1st Amendment doesn't have a "except for impeachment" clause.

        Somin is just justifying the means with the ends.

    2. I mean, that's it, full stop.

      I have become more and more convinced that the real issues here are about ego, narcissism, jealousy. A lot of law professors just can't stand that there's a part of the Constitution where their views are completely irrelevant and they don't get to interpret it. So they are constantly jumping up and down like 2 year olds screaming "look at me! look at me! don't you want to hear my constitutional analysis?".

      It's just pathetic. Congress sets the terms of impeachment debates. There's no judicial review, and if they impeach or don't impeach on some criterion law professors don't like, the law professors can whine until they are put in their graves and the politicians won't give a hoot what they say.

      1. Well, strictly, regular courts can ignore law professors, too.

        1. True, but because their decisions at least formally consider legal reasoning, law professors have a role.

          They have no influence on impeachment, and it drives them nuts.

      2. I think you are wrong here that legal reasoning isn't in play here. Obviously it didn't stop the House from impeaching Trump, but it provides a decent hook for wavering Republicans to vote innocent in the trial. The fact that it is political, and there was no high crime or misdemeanor, plus it's after he's left office gives lots of reasons to vote no.

        In fact I'm wondering now whether Roberts will preside, it doesn't seem like he has any obligation under the Constitution: "When the President of the United States is tried, the Chief Justice shall preside". I think he might find it beneath his dignity to preside over a moot trial when he has no obligation to.

        1. You suggest an interesting petty question. As a matter of custom, Trump will go by the title, President Trump, for the rest of his life. Is that a manifestation that he continues to hold a place of honor, of which he could be deprived by congress?

          When you say, "there was no high crime or misdemeanor," you are premature. That is the issue left to be decided in the Senate.

        2. I think you are wrong here that legal reasoning isn’t in play here. Obviously it didn’t stop the House from impeaching Trump, but it provides a decent hook for wavering Republicans to vote innocent in the trial.

          That's not true. Look at prior impeachment votes- they are all super-partisan. Why? Because politicians do what is politically beneficial to them.

          At BEST, they rely on scholars the way a drunk relies on a lamppost, for support, not illumination.

          And as I said, the key point here is that scholars are aware of this. These posts (and it's not just here, you can find them on other blogs as well) are pathetic. PLEASE pay attention to us! We beg you!

  2. "established First Amendment law does not protect high government officials from being removed from their positions based on their speech. If it did, Trump would have violated the First Amendment himself on each of the many occasions when he fired a cabinet member or other high-ranking subordinate for expressing views the president didn't like."

    The key word here is "subordinate." Freedom of speech doesn't include the right to disagree with your boss if you're a political appointee of the President.

    Of course, the President isn't Congress's subordinate. He can say stuff Congress doesn't like.

    As for Johnson, he went a bit beyond simply disagreeing with Congress. He suggested Congress was illegitimate because the ex-Confederate states* weren't represented in it. He also blamed the deadly New Orleans riots - now generally regarded as the fault of Democrats - on radical Republicans. Or to put it another way, deadly violence against blacks and white Republicans was - to Johnson - the fault of uppity blacks and their white supporters. Sounds inflammatory to me.

    *except Tennessee

    1. "He suggested Congress was illegitimate because the ex-Confederate states* weren’t represented in it. "

      To be fair, he did have a point there.

  3. If impeachment was such a necessary element to the Republic, perhaps it would have a practical use. In reality, it is for criminals, not political opinion. Jews love it, Americans have no need for it.

    1. Commenters like this are what you get when Putin appoints some random hack to run his troll farm.

  4. If it did, would Ilya say so? Or would Ilya just keep adding qualifiers. Modern established free speech rights.

    Free speech is a principle as well as a right. But people pushing impeachment for vengeance aren’t principled.

  5. "As critics like Jonathan Adler, Andrew Koppelman, and myself pointed out...".

    NO. bad grammar. how can anyone who doesn't know grammar purport to influence a legal debate?

    should be..."and I pointed out"

    cmon, man!

    1. Usually these comments are free of wankers pointing out trivial errors in grammar, punctuation, spelling, capitalization, etc. But, not always.

  6. Might want to note that Annette Gordon-Reed is also a law professor, and an historian. She is most famous for her book about Sally Hemmings, which marshalled the evidence for and against the theory that Hemmings had several children with Thomas Jefferson, and showed, with great lawyering skills, that the evidence was overwhelming that they did have children together and a long-time relationship. This was a few years before the DNA results came out and when most "serious" Jefferson scholars still rejected the idea that Jefferson would carry on a decades-long relationship with, and have children with, a black woman (even though there is no dispute he owned black people, which is kind of a lot worse).

    1. Where did her scholarship come down on the most pertinent question: "Was she hot?"

      Coz Jefferson was top-o'-the-line back in the day.

      1. There were apparently no portraits painted of her, but accounts say, yes.

    2. Sally Hemmings was hardly a black woman. She had 3 white grandparents, and she was the sister of Jefferson's late wife.

      1. She was an enslaved woman of mixed race. I don't know how many white grandparents she had, and obviously one can argue how to label people of mixed race, but under the law of that time she was treated as Black, and she was owned by Jefferson. Your assertion that she was "hardly a black woman" is at best a semantic quibble, and arguably far worse.

  7. Washington DC has 20,000 National Guard troops to protect the city during the inauguration. But they are not defending against China, or Russia, or jihadists, but Trump supporters, fellow Americans. That is why Trump was impeached and needs to be convicted, because he lied to his supporters so much the have become terrorists.

    1. It's just more security theater. Put troops around Congress, you create the impression of some huge threat.

      1. I don't think it is. These Trumpers are as serious as they are delusioned. Their rhetoric online is even worse then it was a week ago.

        1. To mix metaphors, they're nailing the barn doors shut after the horses have been stolen, to whip up enough hysteria that they can lynch the guy they hate, who didn't steal the horses.

          They don't need 20,000 troops to guard them, that's absurd overkill, nobody is going to march an army to the Capitol. They need 20,000 troops to pretend they're fighting off an attempt to overthrow the government.

          1. 20,000 Troops? That gives the impression Trump has a huge base of support. Or, how much they fear him.

            Did any jurisdiction call out 20,000 troops to handle the rioters in Kenosha, Portland, Seattle, Minneapolis, etc? And, if not, why not? Aren't all the small businesses looted and burned of any importance?

            Seems a bit of an overreaction that makes the establishment look weak.

    2.'re just pointing to a political decision that was made, not a real military strategic decision. But you knew that. The presence of troops means troops were stationed, it doesn't mean anything else.

      Do any of your questions ever get tired of being begged?? Oh, right, you don't have questions, just very questionable assertions which, in true "a lie repeated often enough" fashion, "prove themselves".


      1. Molly is a retarded troll, and a perfect example as to why woman shouldn't be allowed to vote.

        1. You are assuming gender.

  8. The fundamental problem with this argument is that, like most advocates of impeachment, you treat Trump's guilt as an obvious fact which doesn't need to be proven. And then just address secondary matters. He's not 'alleged' to have incited the attack, or 'accused of' inciting it. He just did incite it.

    I'm not sure you even notice you're doing this.

    1. We all watched it on TV over the last two months. There are no facts in dispute.

      1. See, you, too.

        If you lower the bar on "incitement" enough to make Trump guilty of it for that attack, you lower it enough that Bernie is guilty of the House baseball shooting, and a scary number of Democrats are guilty of the rioting that's been going on for about a year now.

        That's why legal professors, after talking as though Trump were guilty of incitement, typically rush to say, 'Well, not incitement incitement. Just some kind of figurative incitement with a vanishingly low standard of proof that doesn't apply to anybody except Trump.

        1. What you are disputing, Brett, is the law, not the facts.

    2. I again ask you Brett, do you agree that Trump tried to steal an election, lied to his supporters in an effort to convince them to help, and they reacted with violence?

      1. No, I think he thought it really was stolen, that he couldn't have lost otherwise.

        And on that last, see my comment above to Molly

        1. Let me clarify. Do you think Trump tried to steal an election without regard to his state of mind.

          Your comment to Molly did not answer my second or third question.

          1. No, he tried to save an election from being stolen.

      2. The Democrats stole the election by importing tens of millions of new "Americans" since 1965. Without those third worlders and their descendants, they wouldn't have won any election since 1976.

    3. I mean...that isn't a problem with the argument? Impeachment isn't performed in a court of law. The standard of evidence is whatever Congress wants it to be. The standard for impeachment and removal is whatever Congress wants it to be.

      This idea that there is ANYTHING that can stop Congress from impeaching and removing someone from office other than the members of Congress is ridiculous.

      1. Impeachment is in principle a sovereign power, rather than a delegated power. Like an election, it enacts the will of the People on the question who should be in office. In principle, then, the sovereign People can prevent Congress from removing the President, or require it. Arguably, they did prevent removal the last time around. Had Trump's base been a notably smaller part of the electorate, he would have been removed.

      2. I'm not saying that it can stop them from impeaching him. Obviously nothing can stop the House from impeaching you if they dislike you enough.

        But these guys are legal professionals, they should be able to remember the difference between being accused of something, and just flatly having done it.

  9. What is the more dangerous president, Trump mounting an indefinite sustained attack on the election results or removal from office?

    1. I don't even know what question is being asked. But, the probable correct answer is that Trump is the more dangerous president, considering he is the only president.

    2. The past 4 years' dangers to the republic, in order:

      1. Unrestricted continuous government investigation of a political opponent. This is why we have the 4th, to stop investigation of your political opponents. The glee with which such politicians outright bragged they could ignore it is sickening.
      2. That opponent's loud mouth to "lock her up".
      3. That opponent's careless loud mouth stimulating doubt in the election for the purpose of giving Republicans the power to turn the tables (see #1) and begin continuous investigations of Biden once they regain Congress, presumably, in 2022. This is just desserts but two grave dangers to the republic don't make a right.
      4. His loud mouth from 3, continued, leading to a protest getting out of hand.
      5. Continued hyperbole of the left for their own political reasons that this popcorn event was serious in the bigger picture.

      We are in danger from both sides, but too many are coopted into their local echo chambers to see the danger their own side threatens.

    3. We had 4 years of the Democrats refusing to accept that Trump won, going so far to trying to overturn that election by impeachment.

      1. The articles of impeachment say something quite different than that, though.

      2. Impeachment and removal does not overturn an election. The duly elected vice-president succeeds to office, not the defeated candidate.

  10. I don’t understand why Somin thinks he can produce consensus in the Senate when he can’t even produce consensus in the Conspiracy.

    1. I think the term for it is "dreamcasting"? I've seen it used in this way: You act like what you want is true hard enough, and maybe it will become true?

  11. Ilya. If you are trying to persuade, the opposite is happening.

  12. Can you just shut up over this?

    You are tedious.

  13. If there is anything Conspiracy fans -- the disaffected clingers, the right-wing culture war casualties, and the bigots in particular -- can't stand, it is some genuinely libertarian content.

    You deserve better, Prof. Somin.

  14. I assume that Prof. Somin would agree with the proposition that Trump could present freedom of speech as a defense, and that the jurors, that is, the Senators could accept or reject that defense. After all, isn't that what a trial is for, to find facts. Hopefully the Senators would reject that defense, as the right to cry fire in a crowded theater etc.

    But would I would ask Prof. Somin and others who have experience and credentials in Constitutional law (in other words, not those who post on this forum to make points that are neither accurate nor germane) is whether or not the CJ could or would rule on the issue of the Constitutionality of impeaching a President who is no longer in office if the defense makes that motion, which assuming they are halfway smart, i.e., not Rudy Guiliani or his cohorts, they would certainly make.

    1. "the jurors, that is, the Senators"

      "The Senate is not simply a jury — it is a court in this case, and therefore counsel should refrain from referring to senators as jurors." - Chief Justice Rehnquist, presiding at the impeachment of President Bill Clinton

    2. You are overlooking the fact that Trump will not be judged by what he said, but by how what he said is INTERPRETED, with "dog whistles", "code words" and plenty of "it is well-known in the white supremacist community that "peaceful" means "violent"."

      I don't even like Trump but I dislike people who lie so easily even more. Especially when they say they're doing it for some ill-defined "good". Scary shit.

      1. He probably also made the "OK" symbol at some point, don't forget.

    3. I'm not sure Roberts will preside, the Constitution only says he should preside over a trial of "the President of the United
      States", and by the time the trial starts, Trump no longer will be President.

      1. It would be amusing if he declined to preside on that basis. But I suspect he's looking forward to it, as he doesn't like Trump.

      2. That argument seems like sophistry. Out of office, they are still trying him for acts as president, not for acts as not-president. Ergo the chief justice should preside.

        If you want to continue prosecution after leaving office as valid, you have to carry the whole ball of legitimacy wax with you.

  15. “I order you to kill that man!”

    Man is killed.

    On trial for murder.

    “I was only exercising my First Amendment rights!”

    1. You know who else used bad analogies?

      1. Every fucking Democrat on the planet for the last week?

  16. Ilya, why don't you just pull out a .30-06 rifle and murder him?

    Just start the 2nd Civil War the way that WW-II started, and you'll be famous. Dead, but famous.

    You really don't understand this country, and I'm guessing you've never worked for minimum wage. You don't understand....

    1. The way that WW-II started? What the fuck are you talking about?

      1. At a high enough level of abstraction, certainly. There were rifles involved.

    2. You think Ilya or any other liberal knows how to fire a rifle? The only guns they know how to use are the Nerf toys they use to pleasure their "husbands."

  17. There's a difference between being impeached and being removed from office by the President. Most federal officers serve at the Presidents pleasure and can be fired for any reason at all. But they may only be impeached for committing some sort of "high crime and misdemeanor". Impeaching a federal officer solely for speech (which does not constitute criminal conduct) or even incompetence would generally be viewed as unconstitutional. So your analogy doesn't carry weight.

    The interesting thing is, his speech to the demonstration was not constitutionally protected. The First amendment does not offer the same protection for false speech. And what he said was false. But there is presently no statute that bans what he did. So however disgraceful his behavior might be he has not committed a high crime or misdemeanor as the constitution requires.

    I do not believe impeaching Trump when doing so is constitutionally dubious (both because of this and doing so after he has left office) is in the country's long term interests. It will further erode his supporters tenuous faith in our institutions. And they will, with some justification, view it as another example of the elites bending their own rules to get Trump. There are better ways to keep him out of public life (i.e. a sore loser constitutional amendment might just pass).

    1. You don't think speech aimed at stealing an election, thus undermining the very foundations of our democracy, is a "high crime" (noting, that your claim a statutory crime is required is not persuasive)?

      1. Yeah, but your analogy doesn't take into account a media environment that has declared questioning the Dems' "we'll take any ballot from anybody anytime", completely ethical approach to elections to be, basically, treasonous armed revolt. (because the Democrats have NEVER done anything unethical? Are they even pretending any more?)

        As is telling protesters to go home peacefully. Apparently.

        We've got a party in power that can say "innocence is guilt", "lies are truth" and "'logical consistency' is a dog whistle" and the press nods sagely, not even pretending they didn't already know the message.

      2. But the House does in fact charge a statutory crime in its one article of impeachment.
        In that case prosecution in the Federal Courts has the greatest degree of appearing to be non-political.
        Or are you afraid of trail by jury?

        1. While the House charged Trump with incitement of insurrection, they did not reference any part of the US Code. So no, the House did not charge trump with a statutory crime. Also, the jury are the 100 Senators.

          1. Josjh,
            You did not tell me anything that I don't know. It is only that the used the same language as the US Code, making it clear that Mr. Trump code be prosecuted for a criminal offense.
            Moreover, as CJ Rehnquist has written, the Senators are not members of a jury, they are members of a court with the power to remove officials from office.
            And no, a trial in the Senate is not a proceeding of the Judiciary despite the CJ-SCOTUS presideing over the proceedings as a neutral high official.
            So, nice try at ducking the question. Are you afraid of a judicial trial by jury. And if so, why?

            1. Don Nico, I guess you must be asking whether the Senate ought to be bound by federal statutes while determining whether or not to convict Trump of the impeachment charge. Of course not. That would violate the constitution, which says explicitly that the senate has, "sole power," to try impeachments.

              Sole power means no constraints, nobody else gets a say, the decision can't be reviewed anywhere else. Federal law would be a constraint. Jury process would be a constraint. Legal due process would be a constraint. None of that is any part of the power to try impeachments, which is intended to be an arbitrary power, to be exercised at pleasure, by the Sovereign People.

              It is thus crystal clear that the impeachment power was intended by the framers to be a political process, not a judicial one.

              Seems like, "Are you afraid of a judicial trial by jury," is almost deliberately muddled, unless it implies in your usage, ". . . a judicial trial by jury in the Senate," which would be clear, but a self-contradictory reference to the impeachment power.

              Am I missing something?

              1. I think ReaderY has a good point below, that while they're not bound by federal statutes, the "high crimes and misdemeanors" language suggests that they ARE bound by what the Constitution permits making a crime of. Exercising a right can't be the basis of impeachment.

            2. It is not at all crystal clear the House is saying Trump could be prosecuted for a criminal offense, and it's not their job to make such a judgment. The DOJ can make that determination, and I suspect they will conclude it is highly unlikely Trump would be found guilty under the Brandenberg test.

      3. His intent is a bit hard to parse. I'm not sure why Trump said what he said, but then what else is new.

        It's probably too far to say that the President can only be impeached for a statutory crime. But, I think non-statutory impeachment requires an abuse of authority. Which is not what Trump did in this instance.

        His alleged misconduct (in this case) involves no use of official power. He lied about an incredibly provocative issue. And what he did is wrong, and plausibly could be made illegal. But, I'm skeptical about impeaching presidents for lying, even about provocative issues, is a good idea.

        1. Trump attacked American constitutionalism at its very core. Doing that ought to be regarded as the most succinct and relevant definition possible of, "high crimes and misdemeanors." Trump's offense was not treason, but it was closely akin to it in seriousness.

          1. "Trump attacked American constitutionalism at its very core."

            By existing, apparently. As I've pointed out several times, Democrats, (Yes, including law professors!) were discussing impeaching Trump before he'd even been elected. Nadler filed to start an impeachment inquiry on Feb. 10th, 2017. Every poll since Trump took office has shown a solid majority of Democrats wanting Trump impeached, even when they couldn't identify a basis for impeaching him.

            Would actually inciting that riot be a good basis for impeachment? Sure. Metaphorically 'inciting' it by not conceding he lost?

            That's just sore losers transforming into sore winners.

        2. Lying in order to steal an election, regardless of his intent (*), strikes me as easily being a high crime.

          (*) The only other possibility besides intentionally trying to steal the election is he is delusional. But even in that case, the result is an attempt at stealing the election, which suffices for impeachment in my opinion.

          1. I find it implausible that he actually thought he would change the outcome. My best guess is that he's lying in order to shore up his position for 2024. But who knows what goes on in his head.

            From a legal and constitutional perspective he wasn't technically trying to "steal" an election. A private citizen doing what he did would not be a crime. Legally (though maybe not morally) there's a difference between this and say ballot stuffing.

            I just don't think the president lying for political advantage is impeachable.

            1. I agree that Trump is most likely not guilty of any statutory crime because that requires proving beyond a reasonable doubt he intended to steal the election. I also agree that lying to gain a political advantage is not impeachable. However, I believe lying with any intent that results in an effort to steal the election is impeachable.

  18. Why argue, prosecute on the afternoon of Jan 20 and let's see what the only nine persons whose opinions matter say.

    1. Don Nico, if by, "nine persons," you mean the Supreme Court, their opinions matter not at all. They get no say. I doubt there are any among the justices who would tell you otherwise.

      1. I think you misunderstand. If you prosecute Trump for the crimes he's claimed to have committed, in a court of law, the Supreme court WOULD be the last court of appeal.

  19. Somin just does not want Trump running in 2024, after the economy has been carpet bombed by the far left policies of the Biden administration. The Democrat voter will endure great agonies the next 4 years.

    1. I'm just hoping that when the economy does collapse, real Americans remember who did it to them.

      1. The media will tell us that it was some kind of financial time bomb left by Trump, and anybody who contradicts them will be deplatformed.

        1. They won't care if they're hungry. They'll seek revenge against the banksters and other parasites.

  20. Deep State has won. As have the tech biilionaires, Cheating agents of the Chinese Communist Party are attacking the greatrest President since Washington. Result? Untold agonies await the American people under Democrat tyranny.

    1. Either a bot or someone so horrendously stupid that I think they're wasting air.

  21. I disagree with Professor Somin here. Yes, one can be fired from an ordinary government job because ones speech is disruptive to government policy or even management disagrees with your policy views. And yes, being fired is a much lesser deprivation of life, liberty, and property than being sent to jail or executed and does not require the same level of due process.

    But the constitution sets a standard for impeachment that is different from the ordinary due process standard needed for being fired from an ordinary job. That standard is high crimes and misdemeanors. And it is that standard, not due process principals, that controls here.

    In my view, ordinary political speech cannot be a high crime or misdemeanor. If Congress had impeached President Truman for intemperate language in calling them a “Do Nothing Congress,” their action might be unreviewable. But this would not make it right. They would be violating their oaths of offices. Indeed, the fact that their action is unreviewable by courts means that members of Congress have a special responsibility to evaluate the rightness of their actions on their own. They are responsible for constitutional review.

    In order to have a high crime or misdemeanor, something has to happen that renders what the President did outside of First Amendment protection. I think that is very likely the case here. The articles accuse President Trump of much more than mere political speech. They say he actively instigated the assault on the Capitol, telling his followers to march on the Capitol and to fight. This makes what he did, if proven, conduct, not speech, and outside First Amendment protecction.

    Once again, the fact that there is no judicial review for impeachments doesn’t mean Congress has constitutional license to do anything it wants. It must ensure it is following the constitution, and a fair reading of it. Just as, in my view, a “trial” requires more than a purely pro-forma proceeding, “high crimes and misdemeanors” cannot include clearly constitutionally protected conduct. However, because what President Trump is accused of is conduct not protected by the First Amendment rather than pure speech, it is lawful to convict and remove him from office for it if proven.

    1. In other words, something that cannot be made criminal under the constitution cannot be a high crime or misdemeanor for purposes of impeachment. Whether or not Congress is bound by the terms of the criminal code in impeaching the President, it is bound by the constitution’s constraints on that code.

      The “High crimes and misdemeanors” standard means that what the President did had to have been criminal. The ordinary standards for removing an ordinary person from a job are wholly irrelevant to this. Impeachment is sui generis, with its own constitutional rules and standards. Professor Somin’s analysis completely ignores this basic fact.

      1. What he did could be made illegal though. There are criminal libel laws that have been found to be constitutional.

      2. "High crimes and misdemeanors" is a legal term of art. The founding fathers did not think of it as being limited to actual crimes, and senile and mentally incompetent federal judges have been successfully impeached and removed, even though there was no determination that they committed a crime. Jonathan Turley, a law professor who testified against Trump's impeachment the first time around and again opposes it this time, explained in a column a year ago that the argument that the President had to commit a crime in order to be impeached is wrong.

    2. I seriously doubt Trump's words are outside First Amendment protection under Brandenberg.

      1. Brandenberg did not involve speech by a government employee. Speech by a government official in furtherance of his official responsibilities is not First Amendment protected,per Garcetti v. Ceballos. Part of Trump´s official duties is to take care that the laws are faithfully executed. Even though Trump´s speech was a perversion of the take care clause, he was speaking within his official duties.

        Garcetti and not Brandenberg is controlling here.

        1. I believe the limitations on First Amendment protections provided by Garcetti apply only to employer sanctions (e.g., dismissal or pay cut) and not criminal prosecution.

    3. We don't need no stinkin' constitution -says Ilya.

  22. These arguments might turn out to be moot. It's possible that evidence will come up in the trial showing that Trump engaged in conduct that is not protected by the First Amendment.

    1. It's possible, sure. Lots of things are possible.

  23. How can you honestly charge Trump with incitement for something that was planned weeks in advance?

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