The Volokh Conspiracy
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[This post is co-authored with Seth Barrett Tillman.]
Yesterday, the House adopted a single article of impeachment, titled Incitement of Insurrection. The House did not actually charge President Trump with personally engaging in insurrection. Rather, the five-page resolution asserted that Trump's words and tweets since the election "encouraged" the "lawless action at the Capitol" and "gravely endangered the security of the United States." The House rejected any argument that the President's speech was protected by the First Amendment. The Judiciary Committee concluded that freedom of speech "applies very differently" to the President "by virtue of his office" than it does to "private citizens." Moreover, the Committee endorsed the views of constitutional scholars who argued the President has zero free speech rights in this process.
Regrettably, the House Democrats have forgotten an important lesson from the impeachment trial of President Andrew Johnson. In 1868, the Radical Republicans impeached the Tennessee Democrat for using "intemperate" and "inflammatory" language that was critical of Congress. Ultimately, Johnson was never convicted on this charge, in part, because pivotal Republican Senators insisted that the First Amendment protects the President's freedom of speech. History may repeat itself again soon. To secure a conviction, House managers, acting as prosecutors, must make their case to the Senate, and to the country, that convicting Trump is consistent with the First Amendment. The President's right to free speech should not be simply dismissed out of hand.
After Lincoln's assassination in 1865, Vice President Andrew Johnson became President. Over the next three years, Johnson frequently clashed with Congress. The Radical Republicans wanted to pursue a vigorous and forceful reconstruction of the southern states in the wake of the Civil War. Johnson opposed many of these efforts. This conflict peaked when Johnson fired Edwin Stanton, who was Lincoln's holdover Secretary of War.
In 1868, the House of Representatives approved eleven articles of impeachment against Johnson. Most of the articles concerned Stanton's termination. But Article 10 focused on Johnson's public criticism of Congress. It asserted that Johnson brought Congress "into disgrace, ridicule, hatred, contempt and reproach." In one speech in Washington, D.C., Johnson said Congress only "pretend[ed] to be for the Union," but was for "only part of the States," and sought to "exercise [the] power" of a "despotism." In a second speech in St. Louis, Johnson said that "Congress, factions and domineering, had undertaken to poison the minds of the American people." In a third speech in New Orleans, Johnson said he was betrayed by Radical Republicans who had "diabolical and nefarious" plans.
Ultimately, Johnson was acquitted in the Senate. History records that seven Republicans crossed party lines, and voted against conviction. John F. Kennedy lionized one of the septet, Senator Edmund G. Ross of Ohio, as a Profile in Courage. (In recent years, that account has come into some doubt.) But largely lost in that history is that five of the other breakaway Republicans defended Johnson's free speech rights. They agreed that the President had the same First Amendment rights as a private citizen.
Senator John Henderson of Missouri stated plainly that "the President, like other persons, is protected under" the First Amendment. "He too," Henderson continued, "has the right to make foolish speeches." Senator James Grimes of Iowa admitted that Johnson's speeches were "indiscreet, indecorous, improper, [and] vulgar." But he could not "attempt to repress the freedom of speech." Senator Peter Van Winkle of West Virginia said the First Amendment was "unquestionably of universal application," even to the President. Senator Joseph Fowler of Tennessee boasted that Johnson did no "more than exercise that liberty of speech guaranteed to him by the Constitution." Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only "den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs." The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.
To be sure, several Republicans who voted to convict Johnson insisted that the President's free speech rights were reduced. Senator Timothy Howe of Wisconsin stated that the "people of the United States own the office of the President," and can "protect it from desecration." And Senator Jacob Howard of Michigan maintained that "no question of the 'freedom of speech' arises here."
The House managers, who prosecuted the case, rejected the First Amendment defense. Representative John Bingham of Ohio would "stand against that freedom of speech which would disturb the peace of nations." In a fiery speech, Representative Charles Sumner of Massachusetts said the "President, at the top of the ladder," has "greater responsibility" than other government officers, and thus should be held to a higher standard.
Ultimately, the Senate never voted on Article 10, so we do not have a final judgment on the constitutionality of that charge. Yet, this history should give the House managers pause about their rejection of First Amendment rights for the President.
During the upcoming impeachment trial, Senators will not be bound by Supreme Court precedents in the same way that lower courts are. We think the Supreme Court's First Amendment caselaw establishes a baseline. And Senators ought to explain their departure from those precedents. A senator might comply with his constitutional oath, and act in good faith, if he determines that the full scope of First Amendment rights apply to the President under established Supreme Court caselaw. A senator might also comply with his constitutional oath, and act in good faith, if he were to decide otherwise. Our point is that First Amendment rights established by the courts establish a baseline from which departures ought to be explained.
We do not doubt that different positions with regard to the scope of the President's First Amendment might be applied by a conscientious member of Congress. And each of these different legal positions may still lead to a conviction. But we do think departures from the judicially-established baseline ought to be explained. The process, and constitutional rationales, matter. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right.
By necessity, this process has been hurried. Yet, Congress should not forget the lessons of history in the rush to convict President Trump. We know all too well that history has a way of repeating itself. During Johnson's impeachment trial, a House manager warned that Johnson's remarks were not "only talk." In a speech that could be used for Trump's senate trial, Representative Benjamin Butler of Massachusetts said that "words may be, and sometimes are, things—living, burning things that set a world on fire." In 1868, Butler's speech did not carry the day—the House failed to convince enough Republican Senators that the President's speech was unprotected by the First Amendment.
Democrats are poised to make a similar mistake today. The House managers seem to think they are more likely to secure a conviction by presenting an impeachment article—a functional indictment—which ignores the President's free speech rights. We think this approach may be a blunder. As the managers depart further from the traditional understanding of the First Amendment, the proceeding will more likely be seen as unfair. And, Republicans who see the proceeding as unfair may, at the margin, vote to acquit. They could defend their vote by finding that the managers chose the wrong legal standard. These Senators could justify their vote as a prudential choice to avoid making bad law and bad precedent. At that point, the merits of Trump's case might not matter much. As a pragmatic matter, presenting a case that recognizes established free speech rights may garner more votes for conviction. And ignoring those rights could lead to more votes for acquittal. The managers should not forget the lessons from 1868.
[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]