We Should Not Forget The Free Speech Lessons from President Johnson's Impeachment Trial

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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).]

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  1. “The House did not actually charge President Trump with personally engaging in insurrection.”

    Really? The charge, to which you linked, quotes language from Section 3 of the Fourteenth Amendment which provides (inter alia) that public officials who “engaged in insurrection” against the constitution are barred from public office.

    Doesn’t that mean that the House claims Trump “engaged in insurrection”?

    1. They did for the purposes of guilt, but not for the purposes of evidence required. It’s a delicate balancing act, I guess.

  2. We are at the literal use anything to “get” Trump level of rabid hatred. That is all.

    1. Rumor is as Trump leaves the White House for the last time, Pelosi is going to throw an actual kitchen sink at him as a last ditch attempt to hurt the man.

    2. The guy gives so much, no need for scrounging at all.

  3. Oi vey, the confused self importance of clowns with law degrees. Impeachment of Johnson was a political shit show, as was Newt’s game on Clinton as is Pelosi (gender neutral speaking) efforts on Trump. Like no one can see the games of a worthless congress ignoring the people they represent? Anyone?

    Send all the jews to Israel then they can complain about themselves.

    1. The people Congress represented voted for Biden. Trump wanted them to overturn the expressed will of those people.

      1. don’t argue with nazis. punch nazis.

        1. I flagged this because it is an explicit call for violence.
          That is unacceptable, regardless of whom you want to violate or why.

          1. “punch nazis” is not specific or imminent, and is probably hyperbolic keyboard bravado. Much like the type of posts which big social media companies have chosen to selectively deplatform, and political speech which the House of Representatives has chosen to selectively impeach for fictional incitement of a fictional insurrection. If political calls to “fight” (nevermind explicit exhortation to be peaceful) were incitement to violence, most politicians would be guilty. Reasonable people do not think Bernie’s fiery diatribes were incitement to violence because with hindsight we know that his supporter fired at political opponents. The better answer to censoring impulses is not more censorship, but more speech.

          2. Do you flag when Aktenberg talks about gassing liberals?

  4. I understand its hard right now to know what’s right, Blackman, but there are some helpful guideposts. See above me, the Nazi commenting on your useless drivel? That means you are being stupid. Don’t be stupid. Don’t make people stupider.

    1. If you argue against impeachment you are a literal Nazi. Thats the mentality we’re working with right now.

      1. Also don’t point out that the capitol hill event was nothing more than a carnival like atmosphere with a tinge of sit in protest that ended voluntarily.

        Calling it things like a riot, coup, or insurrection are much better from a PR standpoint.

        1. “nothing more than a carnival like atmosphere”

          The last carnival I went to didn’t have a cop beating game on the midway…

          1. Queen Amalthea — such things, unfortunately, do happen at carnivals. It’s why cops is a plural word so as to discourage it and to facilitate the arrest of those not bright enough to be discouraged.

            1. I’d be curious to see statistics for how often a carnival results in a police officer being beaten to death and 58 (or more) police officers being injured – leaving aside the officer who committed suicide afterward until we know more about the facts behind it.

              1. I’d be curious to see the scientific reasoning why 1 large protest with one major incident where all deaths aside from one being from the police attacking the protesters is classified collectively as an apocalyptic riot while earlier protests resulting in orders of magnitude more deaths and destruction is classified as a peaceful protest.

                1. Could where it occurred and what was going on there at the time be factors you think?

                2. The real answer is subject matter. If the activists here were BLM protesting a Trump victory you know the media would be all for a “takeover of the People’s House” along with “appeals to listen to all these concerned people.”

                  1. And we know from Dem calls to not concede under any circumstances, and previous ends-justify-the-means statements like that of Harry Reid, that there would have been similar procedural challenges if Trump had received more electoral votes. And we also know that businesses were boarded before the election in case Trump had won. Yahoos in the Capitol are rightfully facing prosecution, while many yahoos who smashed Federal courthouses and other property in 2020 have largely been excused as righteous social justice warriors.

                    1. This is the ultimate what-aboutism, what about the potential unprecedented months of non-concession and peddling of dozens of wacky fraud claims vs. the actual unprecedented months of non-concession and peddling of dozens of wacky fraud claims that occurred!

                    2. Whataboutism = politics. If Dems don’t want this to be a larger political issue they should stop turning it into one.

                    3. Queen Amalthea–What you decry as whataboutism is context which suggests that raw emotional politics are trumping reasoned justice, legal order, and open debate. Pointing out changing positions (Dems have and will again challenge certifications), and lack of connection to legal definitions and evidence (e.g., “insurrection”, words versus characterization of inciting violence) should matter to those who understand that inconsistency is injustice, and will lead to greater distrust/division.

        2. It’s also the end result of academia having tolerated this foolishness for the past 30+ years. Building takeovers are WRONG — I’ve been saying that for 30 years.

          It was wrong then, it is wrong now, but if society is going to tolerate this for two generations of college students then how the hell do we turn around now and say it isn’t because of the content of the speech?

        3. Carnival where the stated intent was to overthrow the constitution, attack the members of congress and get the Vice President

          No one is buying your apologist crap

          traitors to the republic

          1. It simply was not an attempt to overthrow the government. That is a joke.

            1. The goal was to stop the certification of the duly elected President elect, that is to thwart the will of the people and our scheduled next administration from taking power. That’s definitely in the neighborhood…

            2. Can’t buy that, Jimmy. Had the Capitol attack been better received—as I’m sure its participants expected—then the next iteration would have been an unambiguous attempt at overthrow, and far more imposing.

              1. Hey, everyone, look! Nostradamus has returned!

      2. “If you argue against impeachment you are a literal Nazi.”

        Not at all, but if your response to impeachment is “Send all the jews to Israel,” at the very least you’ve got some issues that you should be working out instead of posting things like that on the internet.

      3. And a textbook definition of fascism is refusing to tolerate any nuance of diversity of opinion. Such people are the true fascists.

        1. That’s no textbook definition of fascism at all.

          1. Which is a very important point, Queen Amalthea, now widely acknowledged by students of fascism, after decades of trying unsuccessfully to come up with such a definition.

  5. I got to this part “Ultimately, the Senate never voted on Article 10, so we do not have a final judgment on the constitutionality of that charge.” and thought, you’ve got to be fucking kidding me.

    1. Would you care to explain {i} in rational terms {/i} your judgement?

      1. The headline and thrust of the article is we need to heed the ‘lesson’ learned in Johnson’s impeachment re free speech, but no lesson was learned at all as there wasn’t even a vote on that article.

  6. I really don’t understand why Drumpf saying to show up and peacefully protest is incitement but Dems saying to show up and protest for decades isn’t.

    1. Trump said a lot more than that of course.

      1. Dems have been saying for decades to protest and f^&k sh&*t up in far stronger terms for decades. The BLM riot support alone ‘which they’ve never apologized for unlike the Repubs apologizing for one incident btw’ lasted months alone.

        1. I hope you lifted with your legs in moving that goalpost.

      2. For example?

    2. I would give you the benefit of the doubt and suggest that you’re not that stupid; that you’re lying and you really do understand.

      1. Stupid is believing some random comment on blog that Dems have in history never called for protests in as strong or stronger terms than Trump when a quick Google search or basic 3rd grade history knowledge makes it obvious that its basically their whole platform.

  7. There are several things to consider in this “hasty” article of impeachment, but one in particular comes to mind.

    (Democratic) members of Congress were personally afraid for their safety, and they DID NOT LIKE IT.

    This really needs to be emphasized. These articles of impeachment are unusually hasty (we’ve got what, 8 days from event to impeachment?) and this was an emotional response. Throughout the riots and lockdowns of 2020, this really didn’t affect the members of Congress to any real extent. It was an abstract, something that happened to someone else, somewhere else. But on January 6th, it became real to them. And they lashed out.

    Make no real bones about it, these articles of impeachment are an emotional lash out from the feelings the members of Congress had. Under any other circumstances, they would not have happened. But because they “personally” felt fear, they needed to take immediate action. Whether that action taken was justified or not is questionable.

    History will come back here, and understand that this was ill conceived. But that is for another time.

    1. You don’t think the rush is because he’s leaving office soon?

      1. Not really. He was going to be gone in less than two weeks. So that does not justify the rush.
        All relevant penalties can be undertaken the afternoon of Jan 20. When Private citizen DJT can be prosecuted under federal law for insurrection.

        1. You’re just saying this because you’ve got this eccentric idea that Presidents should be tried for criminal offenses not impeached when the former is available, it doesn’t go to my point at all which is that if one doesn’t share your eccentric view there then the fact that he’s soon to be out is a darn good potential reason to rush.

      2. Not really.

    2. (Democratic) members of Congress were personally afraid for their safety, and they DID NOT LIKE IT.

      https://www.detroitnews.com/story/opinion/2021/01/09/opinion-after-heinous-assault-time-reckon-reality/6599593002/

    3. (Democratic) members of Congress were personally afraid for their safety, and they DID NOT LIKE IT.

      I don’t doubt it — it’s scary to have a mob take over your building — I’ve had it happen to me — and I don’t doubt this.

      But you can’t concurrently be arresting people for having been plotting this for two weeks prior while concurrently claiming that Trump incited it.

      1. The argument is Trump’s incitement was a long path from his unprecedented months of claiming fraud to calling for the event and then the speech.

        1. Does he have a right to be wrong?

          1. Congress has a right to impeach him for being wrong.

            1. Ding ding ding! We have a winner!

          2. Doesn’t he have a duty to not be wrong, especially recklessly and relentlessly wrong? Since he appeared to have lost the vote (indeed, even before voting occurred!) Trump consistently peddled dozens of allegations of ‘fraud’ many of which were cockamanie at best. When a sitting President does that with a bunch of hyperbole it’s a violation of his duty (this is why it’s never been done before in our long history).

            1. If being wrong is an impeachable offense, there are going to be very few Federal politicians that finish out their terms.

              1. History has proven you incorrect considering that being wrong has ALWAYS been an impeachable offense.

              2. Doesn’t that sound like a good thing?

    4. Nobody ‘feared’ a bunch of unarmed doofuses being let into the room who ran around like children and smoked weed. If that was true the GOP would have voted along with the Dems or the Dems would do something to clean up their crime ridden districts for the 2-3 times a year they have to walk through them. The reason impeachment passed was it was an opportunity to get Drumpf. Nothing more nothing less.

      1. Except, of course, that many of them were armed, and many of them didn’t run around like children at all – hence the guns, the zip cuffs, the pipe bombs and the dead and injured cops.

        1. How many of the protestors entering the capitol were armed with guns and pipe bombs. How many dead people killed by the protestors were there?

          1. “How many of the protestors entering the capitol were armed with guns and pipe bombs.”

            Who knows?

            “How many dead people killed by the protestors were there?”

            So far, one dead, 58 members of the D.C. police injured, and we don’t have a number on injured members of the Capitol Police.

            1. I wish you cared as much about all the dead in the BLM riots as you apparently do for this one death.

          2. Over 20 were charged with violations relating to guns, out of the ~70 arrested according to GWU’s tracker…

            1. It was a gigantic rightwing protest. Of course theres going to be a tiny fraction packing heat. I was asking how many of the ‘rioters’ who actually entered into the capitol building were armed with guns and pipe bombs like op suggested.

              1. So now it’s an armed mob that killed a cop and injured 58 more?

                Sounds like people had reason to fear it, then.

      2. Also:

        “I had colleagues who, when it came time to recognize reality and vote to certify Arizona and Pennsylvania in the Electoral College, they knew in their heart of hearts that they should’ve voted to certify, but some had legitimate concerns about the safety of their families. They felt that that vote would put their families in danger.”

        https://reason.com/2021/01/08/amash-successor-peter-meijer-trumps-deceptions-are-rankly-unfit/

      3. AmosArch, to take your comment seriously is to give you benefit for ignorance of what happened. CNN has the footage, taken outside and inside the Capitol. It makes nonsense out of your comment. You should look at it. And stop commenting until you know what you are talking about.

    5. Yeah? Well, let them take it out on the people who threatened them, not the guy they were just looking for an excuse to go after.

  8. This history is interesting and I appreciate your sharing it, but I’m not sure you’re drawing the correct conclusion from it. It seems to me that it shows that there was definitely not any kind of consensus in Congress that the first amendment offered protection against impeachment, even when the article is clearly focused on pure political speech (in way that is, I think, much less true than the current article). So I’m not sure how much guidance this history is supposed to give a contemporary senator.

    I also note that you don’t seem to have addressed Prof. Adler’s point that removing Trump for his speech would not deviate from the Supreme Court’s “baseline” at all, thus mooting your entire complaint.

  9. There’s a little bit more to this — Andrew Johnson had been a Senator from Tennessee, which seceded. Unlike the rest of the Confederacy’s Senators, he remained in DC. The rest of the Senate couldn’t say much because as they didn’t respect the right of Tennessee to leave the union, they couldn’t say that its duly-elected Senator couldn’t remain in the Senate. He also was a Democrat.

    For one reason or another, Lincoln appointed Johnson to be Military Governor of Tennessee once it had been captured — he’d been Governor before becoming Senator in 1857. Then when he ran for re-election in 1864, he replaced Hannibal Hamlin (a Maine lumber baron) with Andrew Johnson as part of a national unity ticket as Lincoln almost didn’t win that race.

    The issue with Stanton was the Tenure of Office Act — a law passed that said that since Senate approval was required to appoint certain officials, Senate approval was required to fire them. Johnson fired Stanton notwithstanding this.

    A military friend of my has speculated that Stanton might have been implicated in Lincoln’s assassination in that the military guards that were supposed to be protecting Lincoln were instead in a bar down the street. Leaving one’s post in time of war is a big thing today — not sure about then.

    And as to the USSS — Lincoln had just created it that day, although it initially only dealt with counterfeiting.

  10. Here’s one informed opinion on why the First Amendment should not apply. I will add that lies which convince people to assist in stealing an election are high crimes against the proper functioning of democracy even if they are protected by the First Amendment.

  11. With respect to the legal argument made by the post by Prof. Blackman, it is indefensible. The crux of the position is that somehow Trump is protected by the First Amendment from being impeached for his rhetoric that may have incited riot and insurrection.

    The first problem of course is that impeachment is not conviction. Trials are held to determine facts, in fact, a judge or trial is sometimes referred to as a ‘fact finding’. The question before the House was whether or not their was sufficient evidence to believe that Trump’s actions, including his speech, incited and abetted rioting and insurrection. Even the most partisan person, if they are objective should admit there was sufficient evidence that this was the case to warrant a trial.

    The trial before the Senate is the place for Trump to argue that what he said is protected speech, and that furthermore even it is he must argue that somehow conviction for inciting and abetting insurrection is prohibited by the First Amendment protections. This latter point of course is nowhere mentioned in the Constitution (just making a point for those considered to be originalists).

    The second problem with Prof. Blackman’s position is that strangely, he argues that just because an argument against conviction of Pres. Johnson on free speech grounds was made in Johnson’s impeachment trial, somehow this means that argument should prevail with respect to Trump. Huh? And finally, Prof. Blackman argues that the House should respect Supreme Court decisions on speech while at the same time admitting that Supreme Court precedents have no role here. Huh?

    Personally I think a result that Trump can never hold elective office again is a win-win-win; for the Democrats, for the Republicans and for the nation. But that of course is just my opinion, that result, if it occurs may be only a win for Republicans.

    1. Sidney,
      Actually the post does not argue that”s that somehow Trump is protected by the First Amendment from being impeached for his rhetoric.” but only that conviction would be an affront to the 1st A. Those are different things.
      But Blackman’s argument may explain why Democrats seem to be afraid of leaving the judgement of DJT to the US Attorney for DC and the Federal Courts.

      1. I interpreted the Blackman post as saying that Trump was being impeached when such impeachment violated his 1A rights.

        “The House rejected any argument that the President’s speech was protected by the First Amendment”

        but we all agree that invoking his 1A rights is a defense Trump could use. But I would still disagree that such a defense is defensible for the same reason that leaving this up to DOJ and the Courts is not appropriate. The simple fact is that according to the Constitution conviction under impeachment is not conviction for a crime, as the Constitution specifically says that after conviction on impeachment the President may face criminal charges.

        Impeachment and conviction is a statement by the Congress that the President is not fit for office and not fit to ever hold office again. Period. There does not need to be consensus that he has comitted a crime, that is for the criminal justice system to determine which is what the Constitution says should happen.

  12. I think there’s a big, big difference between saying the Vice President is a traitor etc. and then telling people to go into the Capitol building and fight, and merely criticizing Congress (or the Vice President) in strong language.

    And I think that difference is very relevant to the First Amendment analysis.

    1. He didn’t say go *into* the building…

    2. Yes, you put your finger on it. Very disappointing that neither the OP nor the commenters want to discuss that point.

      Telling someone to violate the law is quite different than merely criticizing Congress.

      The issue with Trump is the immediacy between his speech and the end result. The Supreme Court has been very strict on that point. Not sure that for impeachment and the President, that same strictness should apply.

      That in a nutshell is the issue.

      But saying that the First Amendment does not apply at all in impeachment is absurd. Under that theory, Harry Truman could have been impeached for calling the other branch the Do Nothing Congress.

      1. Of course he could have been. It would have been stupid, and Congress would have surely been voted out of office the following election, but what what would have stopped them from impeaching him?

        1. As I have said many times here, that is the wrong way of looking at it. Congress takes an oath to uphold the Constitution. All parts. Including the First Amendment.

          The fact that something is not reviewable does not mean that the person is discharging their oath.

          The Supreme Court could rule that any criticism of it, anywhere, by anyone, is contempt of court, not protected by the First Amendment, and criminally prosecutable. What would stop them? Other than their oath and loss of credibility?

          Yes, federal officers, especially those at the top, can just decide to ignore the Constitution. And sometimes they get away with it. It is still unconstitutional.

          1. But you’re begging the question. Of course if a certain impeachment would violate the First Amendment, then a member of congress shouldn’t vote for it. But the entire point is that it’s far from clear that removing a person from office, even for pure speech, actually does violate the first amendment.

          2. Bored, the impeachment power is in the constitution. It says the House is the sole judge of the rules of impeachment. At the very least, that means a 1A claim and a proposal to impeach stand on equivalent constitutional ground, even if they seem to be in conflict. And it also means that the power to decide any such conflict lies with the House, and no one else. In short, your argument can’t prevail without depriving the House of a power explicitly delegated to it by the People.

            1. No, I am depriving them of nothing. I agree that their decision is not reviewable by anyone. But they still are under oath to respect the Constitution. And the Constitution controls and limits their powers.

              The Constitution says that a president can be removed for “High Crimes and Misdemeanors.” Whatever that mean, it does not mean just anything. If the House impeaches a president (or even any other federal officer) for belching in public, they have violated their oath to the Constitution. And citizens are entitled to say so, loudly. Despite the fact that no court will ever intervene.

              The Constitution also says the Senate has the power to “try” impeachments. Whatever that term means, it certainly does NOT mean flipping a coin (which Justice Souter actually hypothesized in U.S. v. Nixon). If the Senate tried a federal officer by flipping a coin, they again would be violating their oath, even though that would not be reviewable in any court.

    3. When did Donald Trump claim the Vice President is a traitor?

      1. “”Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution”

        It’s not quite ‘traitor’ but pretty close (and nothing like that ever seen in the history of our Republic).

        1. Tha is very far from being a traitor except in the realm of internet comments.

          1. Being able to save our Country and not doing so (especially in this context) is very far from being a traitor?

            1. What do you imagine that Pence could have done that he didn’t do?

  13. Oh ok. Guess the president could tell everyone to go rob 7/11s all across the country and it’d be protected by his first amendment rights huh?

    Ridiculous argument.

    1. Since that is not protected by the First Amendment even for an ordinary citizen, it is hard to know what your point is.

    2. Of course Trump didn’t suggest that anyone enter the Capitol, let alone vandalize it.

      Suppose a politician says to a crowd “Police kill unarmed Black people every day without cause but don’t kill unarmed white people without cause. We need to fight for justice!” and that crowd then goes on a rampage (that some, apparently, had planned in advance but not to the knowledge of the politician) destroying property, assaulting police officers, etc. If Congress had the power to impeach that politician, should they impeach and convict her? What if a legislative body had the power to remove her from her position within that body, should she be removed?

      Remember, the politician’s claim is false (just as the election claims of Trump were) but she might actually believe it is true (as Trump might believe his claims in his twisted mind).

      Show your work.

  14. Lathering the rubes
    Lathering the rubes
    In this case, just a loser
    Lathering the rubes

    1. You have nothing to say.
      You have nothing to say.
      This post is like every other.
      You have nothing to say.

  15. I wonder if they fully realize the precedent they are setting. If the principle of Free Speech does not protect the President from being removed from office, then neither does it protect Senators or Representatives from being removed from their respective offices.

    The House can impeach for any reason or none. I’ve said before that they can impeach the President because they don’t like the way he knots his tie or parts his hair. The fact that it’s legal does not make it wise. This particular attempt seems exceptionally unwise.

    1. If the principle of Free Speech does not protect the President from being removed from office, then neither does it protect Senators or Representatives from being removed from their respective offices.

      Of course it doesn’t. Anything else?

    2. Sure, they realize the precedent. If they can remove a President from office based on speech they don’t like, they can refuse to seat an incoming Senator based on speech they don’t like.

      Good luck winning back the Senate with that precedent.

  16. The House can Impeach for any reason they find appropriate but this seems fairly weak.

    At the very least this approach will give Republicans in the Senate cover for voting against conviction, by voting for the First Amendment.

    Basically Trump said to fight for a political goal, One could fill volumes of sitting Democratic leaders urging their supports to fight for something. The quotes submitted in his defense should at lease be entertaining.

    1. “Basically Trump said to fight for a political goal”

      The problem is that ‘basically’ is doing so much work here, ignoring a great deal of context around and leading up to that moment.

      1. Basically, let Trump be prosecuted for inciting insurrection.

        1. Impeachable offenses are not all crimes.

          1. But going by history successful impeachment convictions do have an underlying crime.

            1. There have been no successful impeachments of Presidents (even though some attempts have been on charges that were crimes).

  17. Presidents don’t have first amendment rights that protect them from impeachment

    period
    keep mindlessly defending your hero

    1. So you think Harry Truman could have been impeached for calling the first branch the Do Nothing Congress?

      Because some of the language of the Johnson impeachment fits that like a glove.

      1. Exactly!

        And then when five Congressmen were shot in the House chamber…

      2. I don’t see how that conclusion follows from arpiniant1’s premise. There’s no question that there is some speech by the president shouldn’t form the basis for impeachment. I don’t think either the speech by Johnson or Truman was a valid basis for impeachment. But not because doing so would have violated the First Amendment.

      3. IF they could get a 2/3 majority I imagine so, but they would not have, didn’t want to

        so your spurious example is silly

        trump has been incompetent and a stain on the nation since he announced his campaign, that Republicans still do not unanimously throw him out shows how ridiculous your premise is

        The serious point is that a President can indeed void his oath of office with words alone

        I’m nuking the Russians in the morning

        I can say it, you can say it, POTUS cannot say it

        I declare war on Zimbabwe

        I can scream it from my balcony, trumpski cannot

        I realize it is difficult to realize your lord and god may be fallible, but he is manifestly unfit for the office

      4. Bored, to say there is no 1A protection against impeachment does not mean there is no protection at all against impeachment. To call Congress a Do Nothing Congress is neither a high crime nor misdemeanor. It is not an offense against American constitutionalism. Hence, not impeachable. To argue otherwise you would have to show an example of a congress acting that way. No such example exists. There is no principled argument for it, and congress hasn’t done it. Your assertion is founded on nothing but a bad analogy.

  18. I cannot figure out why the trump cultists do not wonder what would happen if a person who actually represented the opinions of a majority of Americans, you know, a Democrat, acted and did what trumpski has done?

    What if a populist with 60 percent approval called for such a thing?

    We should all be thankful that trump is
    a] a moron
    b] historically unpopular

    An actual effective coup using the strateiges approved by your lot is a lot more likely to be successful form the left

    your approval of trump, debasing the presidency for his personal power will not end well for your lot in the long term

  19. Whether the First Amendment applies is a moot point, since the characterization of an article of impeachment as a “functional indictment” is incorrect. This is not a criminal trial, no vote in the senate will send Trump to jail or even fine him. The point of an impeachment proceeding is to fire him. This is an employment decision. And when the government acts as employer, considering speech made in the course of the employee’s job, the relevant First Amendment case law is Garcetti v. Cebellos, under which Trump easily looses.

    1. “The point of an impeachment proceeding is to fire him. ”

      He was fired in November.

      He won’t be in office when the trial begins.

      He will be a private citizen being punished by an extra judicial proceeding.

      1. And then he can be tried in the Federal Courts

      2. “He was fired in November.”

        You should have told him (and most of his followers) that for the past few months then.

        1. Like many people, he was unhappy with being fired and challenged it in court. How terrible!

      3. Even after he leaves office, the only effect of an impeachment proceeding would be to bar him from holding office in the future – in other words, to decide not to hire him again. It is still an employment decision, the relevant First Amendment case law would still be Garcetti v. Ceballos.

        If, after he leaves office, someone does file criminal charges against him, then the First Amendment would quite legitimately come into play. But that is not the scenario contemplated by this blog post.

      4. Bob, you seem to suppose calling it an, “extra judicial proceeding,” deprives it of legitimacy. Not so. Were it a judicial proceeding it would be illegitimate. In this case, only the constitutionally prescribed extra-judicial proceeding can pass muster.”

  20. WOW!
    They compressed all those weeks of hearings, and all the carefully vetted sworn testimony into just 5 pages!
    I am impressed.

  21. “An impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history; conviction results from whatever offense or offenses two-thirds of the other body considers to be sufficiently serious to require removal of the accused from office.” Gerald Ford

    [Need to make a macro for this so I don’t have to keep looking it up.]

    1. One problem. Ford was dead flat wrong.

      The purpose of impeachment is removal from office, not some meaningless symbolic censure, the House of Representatives wouldn’t need to invoke impeachment for a symbolic censure.

      The house vote doesn’t remove the President from office. The Senate decides whether or not to remove the president.

      Therefore: An impeachable offense is only what 2/3rds of the Senate thinks it is.

  22. Very unconvincing.

    1) Senators in 1868 can say dumb, incorrect things just like senators in 2021 can. The mere fact that they uttered them doesn’t mean much in the analysis.

    2) What case law is Congress supposed to take account of? What case law is relevant or on-point on this topic? And why should Congress care? After all…

    3) What remedy would the president have for being impeached in violation of his first amendment rights? Assume a president said something morally reprehensible and politically ruinous, but completely protected by the First Amendment, and Congress impeached and removed him for that speech. What remedy would the president have? There’s no mechanism to appeal to the Supreme Court, it has no jurisdiction over such an appeal, and it would have no ability to implement its ruling.

    I don’t think the Senate is going to vote to convict Trump, and some might cite the First Amendment as their reason not to, but don’t confuse political rhetoric for convincing legal arguments about the boundaries of the First Amendment.

    1. I am going to take issue with your last point. We should expect government officials to do the right thing, even if (indeed, especially if) their actions are unreviewable. If impeachment would violate the First Amendment, then they shouldn’t vote for it, even if that vote couldn’t be challenged later.

      1. I’m not sold on that idea. Here’s an example of why: many people say that a particularly scandalous pardon would be fair game for impeachment. If that’s true, well, the pardon was certainly constitutional. So it seems to me that a President can be entirely within their Constitutional rights and yet be impeached.

        1. “many people say that a particularly scandalous pardon would be fair game for impeachment.”

          Many people say lots of stupid things. The House can put anything it wants in articles of impeachment, but it’s not an impeachable offense unless the Senate votes to convict.

          Current to date record on Presidential impeachments/convictions: 3/0.

          Will this make it 4/1 or will it end up 4/0. That remains to be seen, but the odds would seem to be in Trump’s favor on this.

      2. I give you credit for posting this. We have become so used to thinking that “unconstitutional” means “something the Supreme Court will strike down” that we forget that that is not what the Founding Fathers meant.

  23. Because people seem to be unable to comprehend the capitol hill event, I have written a short story about it:

    Once upon a time, in a land called the United States of America, there was an election. When the votes were counted it looked as if the incumbent, Donald, was going to beat his challenger, Biden. But, in the dead of night the vote totals took a sharp turn to the favor of Biden.

    After several more days of counting it appeared that Biden had the most votes. However, Donald was suspicious as to if all the votes cast for his opponent were lawful and properly counted. And many other people who supported Donald had the same thought.

    Over the next two months those people tried to express their feelings. But when they posted on the internet, their questions were banned. When they asked the media, they were told it was a “conspiracy theory” and then were called names. When they pressed for answers, all they got in return was censorship, hatred, and agnst.

    Then one day when all the votes were to be counted in the capitol of this nation, Donald told his supporters if they wanted their voices to be heard to be heard to come to that capitol on that same day. All the people, after eating their apple pie, did the next greatest thing an American can do and went to petition their government in person.

    So around a million people headed to the capitol in trains, planes, buses, and cars. There were so many that they could barely fit in the rally location. Donald stood up in front of the crowd and told them that if they still had questions the only thing left for them to do was to ask those who had ignored them to answer those questions in person.

    Moved by the speaker, the crowd proceeded to the very building where the vote was being counted hoping that their representatives for once would hear their cries. But, the activists were still silenced.

    Finally, the people had no other choice but to engage in civil disobedience for their voices to be heard. They took over the building that their taxpayer dollars funds and where their elected representatives do work. They pleaded for their voices to be heard, and only after this did people finally pay attention to them.

    And, once it was all done, those people, now heard left in an orderly and voluntary fashion. The vote was tallied and Biden was still declared the victor.

    The End.

    1. ” But, in the dead of night the vote totals took a sharp turn to the favor of Biden.”

      This is as stupid as someone watching a basketball game seeing a player shoot the ball as time expires and the ball falls in the basket with 0:00 on the clock and screaming ‘fraud, injustice!’ when the 3 points are counted. Anyone who pays any attention to elections knows that 1. cities often report full results later than other places (they’re, you know, big and full of people) and 2. cities tend to break Democratic. Everyone who follows elections knows this.

      Trump’s comments on this were very, very stupid and/or misinformed. That he kept making them (even as recently as the GA election) is a terrible look for him, it’s really borderline recklessness, and that so many of his supporters believed him is embarrassing for them.

      When a doofus goes out and makes a mistake this big on such a vital issue it’s one thing, when that doofus is the sitting President of the United States and peppers this kind of dumb claim with over the top hyperbole he’s recklessly endangering and dividing our democratic republic.

      1. Glad you liked the story.

        1. I like the end of the story.

          The better people win.

          Democratic House. Democratic Senate. Democratic President.

          Liberal-libertarian mainstream. Liberal-libertarian culture war victory. Liberal-libertarian strongest institutions (educational, cultural, economic). Liberal-libertarian progress.

          Two or three states admitted (enlarging Senate). Enlarged Supreme Court. Enlarged House (with it, Electoral College). Universal health care. Voter suppression criminalized. Filibuster diminished or eliminated. Bigoted, authoritarian, cruel immigration practices stopped. Responsible, science-driven pandemic management.

          The better ideas — and people — prevail. The American way.

          Clingers hardest hit.

    2. “When the votes were counted it looked as if the incumbent, Donald, was going to beat his challenger, Biden.”

      No, Jimmy: when _some_ of the votes were counted, it looked to those who didn’t know what votes remained to be counted as if Donald was going to beat his challenger. Unfortunately for Trump, the winner of the election is determined by counting _all_ of the votes.

      1. If you read the story you will note that in the end that is what happened.

    3. >>>So around a million people headed to the capitol in trains, pl<<
      oh, and by the way, ha ha ha

      ha

      A few thousand is never a million

    4. I have written a short story about it:

      Once upon a time, in a land called the United States of America, there was an election. When the votes were counted it looked as if the incumbent, Donald, was going to beat his challenger, Biden.

      Ah, so when you said “short story” you meant “fairy tale.” At no point from the day Joe Biden declared that he was running for president until today did it ever look like Trump was going to beat Biden.

  24. Looking forward to passing of current hysterias, and hope our language and economy survive. Antitrust, insurrection, racism, and incitement to violence are just a few terms which have been broken by 2020+.

  25. Nobody is impeaching Trump for criticizing Congress. Trump has been impeached for attacking American constitutionalism, and for encouraging others to do the same using force and violence. He is obviously guilty, because his offenses were committed in public, and recorded for all to see. There are no free speech implications involved.

    1. This is just an example of Congress putting form over substance.

      They couldn’t just say Trump solicited the unlawful overturn of an election, as evidenced by his phone call to Georgia and his public pressure on Pence. We could all agree that he sought to subvert the election while demonstrating a failure to grasp key aspects of the Constitution.

      1. Well and succinctly put.

    2. There is absolutely no difference between what he and other politicians have said.

    3. I agree what Trump did is impeachable, indeed criminal, and he could be (but won’t be) removed from office for it. And I agree his actions are not protected by the First Amendment.

      Where I disagree is with those who say the First Amendment does not constrain the impeachment/removal power. The implication of that is that Congress could impeach a president for criticizing Congress. Which is indeed one of the counts brought against President Johnson.

      After my first year of law school, I interned at the U.S. attorney for the SDNY. We got to watch a few criminal trials. I remember one where someone was on trial for selling drugs. The cops (or FBI agents) found an automatic weapon in his car. The government tried to introduce it, but the defense wanted it kept out as prejudicial. The judge did not want to rule. Several times, the prosecutor wanted to introduce it, and the judge told him something like, “Do you really need that to win your case? Don’t you have enough other evidence?” It did not come in, and the defendant was convicted anyway.

      You don’t need to trash the First Amendment to remove Trump. He attacked a democratic election, by trying to use a mob to intimidate the Senate (and his own VP) from doing their jobs. That is enough.

    4. I don’t like Trump and did not vote for him, but don’t see “obvious guilt” on incitement to insurrection. Representatives are lucky they don’t need to build case with actual evidence, as this would get laughed out of a fair court. In hindsight through select camera views we see that some yahoos yahooed, but it takes imagination to fill in for missing evidence of Trump intent to spur attacks on law enforcement and BLM-style vandalism. Maybe I’m blind, but suspect others share this view without being entranced by Trump.

  26. Can they impeach him for sending in special forces to steal Pelosi’s laptop?

  27. I think that Professor Blackman is making what’s essentially a straw argument here. He is merely associating, by pure association, the impeachment with the proposition thar the president has no impeachment rights. He is implying, I think completely falsely, that the impeachmemt depends on the proposition. If the proposition fails, then so must the impeachment.

    Of course Presidents have first Amendment rights. Of course Truman could not have been impeached for calling Congress a “Do Nothing Congress.” It’s obvious. Nobody is claiming otherwise.

    But President Trump did not simply criticize his political opponents (and former friends) in strong language. He did something wholly different in character. His speech led to the attack on the Capitol. The article charge him with instigating the attack.

    Imstigating a seditious attack is something wholly different from attacking omes political opponents in strong language. Professor Blackman knows this. By casually associating the two and treating them as if they were the same thing, his argument is not merely a completely invalid one.

    It lacks candor.

    1. I’m claiming congress could have impeached Trump for calling Congress a “Do Nothing Congress”.

      Congress can impeach the president, and vote to remove him from office, for literally any reason. The only constitutional restriction on this power is the number of votes required. That’s it. It wouldn’t be a good idea to remove a president for calling Congress “Do Nothing”, but that’s a political and moral argument, not a constitutional one.

      1. Congress DID impeach Trump the first time for making a phone call. I’m sure if all they had was him trash talking Pelosi that would have been the sole count for the second time.

        1. Yes a phone call seeking help from a foreign gov’t with his reelection campaign

      2. JD85, there is a difference between what congress can do, and what it is possible for you to imagine they can do, based on rules you mistakenly suppose are the only constraints on congressional conduct.

      3. The constitution imposes a restriction, an impeachability standard. The standard is “High crimes and misdemeanors.” In my view, conduct that constitutionally cannot be a crime also can’t be “high crimes and misdemeanors.”

        Nor do I agree that what Congress does for impeachments is unreviewable. Congress is responsible for reviewing its actions for constitutionality. Much of what the Supreme Court does is unreviewable. The court has final responsibility. But that doesn’t give it license to simply do whatever it feels like . It has a duty to follow the constitution and police itself. The situation is no different when a different body has final, unreviewable responsibility for something.

  28. As an employee, can’t the President be fired for his speech like anyone else?

    1. No. He is an elected official, not a mere employee. One elected for a term of office. Most employees are at-will and can be fired at any time for any reason not forbidden by law.

      1. It’s meant to be analogous. Our elected representatives can fire (impeach) him on our behalf. His speech protection, as President, is not the same as his speech protections as a citizen. He has no right to be our President, only a privilege that we bestow or withdraw at our will.

    2. The constitution imposes a standard, high crimes and misdemeanors. That’s a much higher standard than for an ordinary employee.

  29. As the charging documents come out and are covered in the media, the idea that this was a peaceful protest is becoming more and more ridiculous.

  30. Hmm a conlaw professor talking about speech inciting violence being protected by the first amendment but never mentioning Brandenburg or any other jurisprudence about the fighting words exception to the first amendment. Disingenuous?
    Johnson’s issue is whether critical speech is protected, not whether violent speech is protected. I don’t believe anyone died from Johnson’s speech. Also, outright lies have less first amendment protection (NYT v Sullivan), no discussion of that here?
    As usual, sub-par commentary from Blackman.

  31. Two points:

    First, it is silly to say that the First Amendment generically protects someone from impeachment. If a Federal judge publicly embraced rabid racism, Congress could certainly remove him.

    The question is, how much should the principle of the First Amendment influence the decisions to impeach and convict?

    Second, the First Amendment literally says “Congress shall make no law”. While the courts have (reasonably, imo) expanded that to include actions of governments, on the grounds that all those actions derive their authority from statute.

    But the votes to impeach and convict are not statutes. They are a separate Constitutional duties of Congress.

    Again, the question is how much should the principle of the First Amendment influence the decisions to impeach and convict? How much should the explicit restriction on law-making be accepted as an implicit restriction on the power to impeach?

    As I say, the answer “100%” is clearly wrong — but I suspect that “0%” is also wrong.

  32. Tramp is a great president. I support him

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