Presidential Free Speech and the Congressional Impeachment Power

The First Amendment should not be a viable defense in an impeachment trial


There has been an active debate on the pages of the Volokh Conspiracy over whether the First Amendment should be understood to give President Trump any shelter from the article of impeachment adopted by the House of Representatives in the aftermath of the storming of the Capitol. Josh Blackman and Seth Barrett Tillman have offered the president some solace. Ilya Somin and Jonathan Adler have not.

I find this issue particularly intriguing both because I am intrigued by most things related to the impeachment power and because this was actually my entry point into thinking about impeachments. I began studying impeachments while working on my dissertation and was drawn to the impeachments of Justice Samuel Chase and President Andrew Johnson. Both of those impeachments involved questions regarding the speech of high government officials and the extent to which they could be held accountable by Congress through the impeachment power for such speech. More recently, I have also become quite interested in free speech issues in American society more generally.

Over at Lawfare, I weigh in with my own contribution on the side of Somin and Adler. Laying aside the question of whether Trump is guilty of the criminal offense of incitement (I'm inclined to agree with those who argue that he is not), constitutionally protected speech is not beyond the scope of what might be a high crime and misdemeanor in a court of impeachment. This is, I believe, consistent with the history and purpose of the impeachment power and with an appropriate reading of the meaning of high crimes and misdemeanors. To allow read the First Amendment as shrinking the scope of the impeachment power would be undermine our ability to identify and defend important constitutional and political norms over time. As always, the impeachment power can be abused, and Congress should be criticized if it is abused and members of the House and the Senate should not vote to facilitate such abuse. But the mere fact that an article of impeachment might involve lawful speech is not determinative of abuse.

From the article:

There is only one impeachment power and one standard for impeachment. That standard for impeachable offenses applies equally to all the government officials subject to it, whether judges, executive branch officers or presidents. It is best to be careful not to deform the scope of the impeachment power by bending it to account for the specific behavior of a particular individual. Of course, judges and presidents have different job responsibilities and adhere to different standards of behavior, and the House and the Senate have traditionally recognized that distinction by following the principle that impeachable offenses involve "charges of misconduct incompatible with the official position of the office holder." If a judge acted like a president, she could and should be impeached. But if a president has a First Amendment defense against impeachment charges, then there is no reason to think that other officers cannot take advantage of the same argument. The relevant question in an impeachment should never be whether the actions under scrutiny are constitutionally protected by the First Amendment but whether they are high crimes and misdemeanors when committed by this individual holding this office in this context.

Imagine that a sitting federal judge told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence. Is there any doubt that such a judge could be impeached and removed from office? It would not matter if a judge made such pronouncements from the bench or on social media or at a lectern. Those statements would be grossly incompatible with the judge's office. Imagine, for example, a sitting federal judge who said in a television interview that the Republican Party is a seditious conspiracy and deserves to be wiped out and its members jailed or shot. There is no doubt that such a judge could no longer be trusted to faithfully perform his duties in the public trust. Imagine a sitting judge accompanying the incumbent president on the campaign trail and delivering speeches urging voters to reelect the president and to vote against all the members of the opposition party. Such a judge would be subject to impeachment and removal. The fact that such speech is protected by the First Amendment would be no defense. Such actions are impeachable, and the Senate could appropriately conclude that such a judge deserved condemnation and conviction and removal in an impeachment trial.

Read the whole thing here.

NEXT: Today in Supreme Court History: January 20, 1953

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  1. Clearly there is no defense against impeachment.
    All it takes is a vote in the house. No defense allowed.
    The senate trial, on the other hand – – – –

    1. This is really very simple. If you say stupid stuff in public the government (with a few exceptions) can’t imprison or fine you for it.

      However, may lose your job because of it. And this is true whether you work for the government or for private enterprise.
      Anyone in the government, from cabinet secretaries on down, are subject to removal for saying stupid stuff. Elected representatives too, although the mechanism is different. Why should the president have royalty-like exemptions for bad behavior? He’s just a guy doing a job, like every other working person, not some kind of deity for whom the laws don’t apply.

      1. The astounding hypocrisy here is that all four House members who had voted in 2017 to challenge Trump’s EC votes voted to impeach him for asking House members to challenge Biden’s!

        The idea that the Democrats consider challenging EC votes to be beyond the pale is absurd. They did it in 2001, 2005, and 2017, and no talk about even censuring those members.

        1. The astounding idiocy here is equating symbolic votes in the House with a 2-month campaign of lies, incitement, and attempts to intimidate state officials, and even the VP, into overturning the results of the election, with the consequences we saw on the 6th.

          1. Oh, right, your doomed efforts are symbolic, Trump’s doomed efforts are real.

            1. Well, how many Capitol insurrections resulted from the Democrats’ symbolic efforts? Did any Democrat incite their supporters to invade the Capitol? Pretty much everyone else understands that distinction whether you do or not (or admit you do or not).

              1. Yes. Democrats incited their supporters to invade the Wisconsin Capitol. They openly supported it, and said it was “Democracy in Action”

              2. No Capitol Hill riots resulted in either case. That’s the argument that has been made in the comments here numerous times.

            2. WTF do you think happened at the Capitol? Just some innocent votes?

              You’re deranged. Your Trump Can Do No Wrong ideology has robbed you of your reason.

              1. Brett’s posts are reasonable and free of invective. Re-read your comment, and then think about who’s unhinged and who isn’t.

                1. Brett’s take: “The astounding hypocrisy here is that all four House members who had voted in 2017 to challenge Trump’s EC votes voted to impeach him for asking House members to challenge Biden’s!”

                  Nothing reasonable about that statement whatsoever, considering that it’s a lie.

            3. It’s not apples to apples at all.

              1) Basis for the Objection. The pitiful democratic objections were based primarily on Russian interference with the election that is demonstrably provable and disputed seriously by nobody. (Raskin’s challenge on the basis of Florida’s dual office holders and Jackson/Grijalva’s complaints about voter suppression were more comparable to what Republicans challenged this year. Both should be condemned, as should Republicans in the present.) The pitiful republican objections were based on a series of outright lies about overwhelming voter fraud.

              2) Target of the Objection. Democrats attacked (primarily) the external threat of Russia. Republicans supported a President who invented a lie to try and take an election from his opponent, who had won the vote. They knew Biden won the vote. They just fucking lied.

              3) Conduct. 4-6 House members objected with no support from any Senator in 2016. VP Biden shut them down in 31 minutes. Fast forward to the present. Over one-hundred Republican members objected and were joined (initially) by over a dozen Senators, later just seven. They held up the joint session, forced debate in separate sessions, for hours, even though the entire Congress had been interrupted just hours earlier. The whole thing was a fucking pathetic embarrassment that we will all have to relive on TV and social media for the rest of our lives. People have to be reminded that a few stupid house democrats tried to make noise but had their mics shut off by a member of their own party, certifying the election of their political opponents.

              1. Straight up lies accusing an elected President of being a Russian agent = valid basis for questioning election results.

                Russia posted some silly Bernie Facebook memes that had no effect on anything = valid basis for questioning election results.

                Concerns regarding voter fraud and 11th hour wholesale transformation of voting systems = invalid basis for questioning election results.

                Got it.

                1. “Straight up lies accusing an elected President of being a Russian agent = valid basis for questioning election results.”

                  Representative Jim McGovern objected on the basis that:

                  “The electors were not lawfully certified, especially given the confirmed and illegal activities engaged by the government of Russia…”

                  Nothing in there about the President being a Russian agent. The objection was denied by VP Biden.

                  Representative Barbara Jordan objected on the basis that:

                  ““People are horrified by the overwhelming evidence of Russian interference in our election…”

                  Nothing in there about the President being a Russian agent. The objection was denied by VP Biden. Biden also had her microphone turned off.

                  When Wisconsin came up, Representative Jackson Lee objected based on Russian interference with the election. VP Biden denied the objection.

                  “Russia posted some silly Bernie Facebook memes that had no effect on anything = valid basis for questioning election results.”

                  But I didn’t say they were valid, did I?

                  “Concerns regarding voter fraud and 11th hour wholesale transformation of voting systems…”

                  All of which is a lie, a knowing lie, and you’re full of shit.

                  1. “The electors were not lawfully certified, especially given the confirmed and illegal activities engaged by the government of Russia…”

                    So, what were the confirmed and illegal activities engaged in by the government of Russia? They ran some advertisements on Facebook! Spending a tiny, tiny fraction as much as the campaigns did.

                    Yes, technically “illegal”, but nothing that even remotely called into question the legitimacy of the EC votes, because all they were doing was influencing opinion.

                    So the truth is they had no basis for challenging the EC votes.

                    1. I’m not arguing with you in support of fucking Jim McGovern. I don’t carry water for that guy. He shouldn’t have objected. I already said I don’t think the house members should have objected. And I was happy to see the Vice President of their own party tell them to shut the fuck up.

                    2. Yeah, my point is really just that the Democrats didn’t consider this outrageous enough to even censure, let alone expel them. So it’s kind of rich impeaching a President for asking members of his own party to do the same.

                      They obviously don’t consider challenging EC votes to be any big deal. Unless a Republican does it.

                    3. @Brett,

                      “Yeah, my point is really just that the Democrats…”

                      The best your “point” can be is that six democrats objected to President Trump’s certification on the basis of admitted, demonstrable, agreed-by-everyone Russian interference with the election. And that those democrats were rebuffed by the majority of their own members in the House, were not joined by a single sore loser in the Senate, and the VP of their own party had their mics cut to avoid any further debate. The entire debacle was up and down in 30 minutes. If it demonstrates anything, it is that as between democrats and republicans, democrats take certification of elections more seriously than republicans. What other conclusion could you possibly reach, or your “point” support?

                    4. There was not Russian interference in the “election”, there was Russian interference in the campaign. It was speech and publishing, if an American had done exactly the same for their own purposes it would have been Constitutionally protected speech.

                      You can’t claim EC votes are legally invalid on the basis of somebody having persuaded voters to vote differently!

                      Trump was at least alleging that the EC votes were invalid as the result of fraud and other voting irregularities, not because the voters had been convinced to vote for Biden. He may have been wrong about that, it may have factually been the case that such fraud and irregularities as occurred were not of that magnitude.

                      But his case for challenging the EC votes at least posited a proper reason for challenging them, in a way the earlier challenges hadn’t.

                    5. “So it’s kind of rich impeaching a President for asking members of his own party to do the same.”

                      This continues to be a lie.

                    6. @Brett,

                      “There was not Russian interference in the “election”, there was Russian interference in the campaign.”

                      There’s no point arguing with you about this. Thousands of words have been written on this. Hearings, etc. Here’s one report. There are four volumes. You can read all of them by just changing the URL and replacing “1” with “2” or “3” or “4”.

                      “It was speech and publishing…”

                      Scanning and downloading data from a state’s election systems is a good bit more than mere speech. If you want to read more about it other than what’s in the link, google the Senate Select Committee on Intelligence hearing of June 21, 2017. The full transcript is online.

                      “You can’t claim EC votes are legally invalid on the basis of somebody having persuaded voters to vote differently!”

                      I can claim what I want. It should be uncontroversial that the legitimacy of elections will decrease if one day a foreign power successfully causes Americans to vote based on lies spread by the foreign power. (That would be true even if it’s based on lies from domestic leaders, too.) I didn’t think it was controversial that we don’t want anybody lying to voters.

              2. “It’s not apples to apples at all.”

                Of course it is.

                Objections in 2016 and objections in 2020 were done under the same procedure and had exactly the same result.

                The fact that there was a few senators and some pro forma debate in 2020 changes nothing.

                Bravo for the purest form of “its different when my side does it” today though.

                1. I suppose you have me. If I put my car in reverse on a highway that’s the exact same thing as me backing out of my driveway.

                  You have to treat as moral equivalency a majority of house republicans objecting to a lie, joined by half a dozen republican senators, then wasting everyone’s time debating it, hours after the capitol had been attacked. Totally identical to six house members objecting primarily on the basis of undisputed external interference with the election, zero senators supporting them, and the VP certifying the election summarily over those objections.

                  I know you know these aren’t the same, so your “Bravo” shit is just performance art. Keep it up.

                  1. The distinctions are utterly meaningless.

                    1. Do you support democratic challenges in 2016, republican challenges in 2020, neither, one or the other, what? I don’t have to convince you that the distinctions are meaningful. My position is consistent. Is yours?

          2. The lies being told about Trump lasted at least 2 years. Lies by House members like Adam Schiff who said he had seen “more than circumstantial evidence” of a Trump-Putin conspiracy. He said that even though Obama intelligence officials such as James Clapper had said in executive session, but never publicly “I never saw any direct empirical evidence that the Trump campaign or someone in it was plotting/conspiring with the Russians to meddle with the election.”

        2. Your comparing apples to watermelons. There are some pretty obvious and significant differences between those efforts and Trump’s. First, Trump had a majority of his party’s Representatives and at least 12 of his party’s Senators on board. Second, Trump’s objection to certification efforts were endorsed by Trump and had the stated goal not of symbolic protest but actual tossing of certified electors. Third, Trump’s efforts were part of a multi-pronged effort to achieve that goal using the courts, working state legislators and officials to toss electors, and pushing the cockamamie and dangerous idea that the VP could just toss the electors.

          It’s hard to take you seriously when you so easily elide these differences.

          1. That is a terrible excuse. It is bad to mount a challenge that lots of people think is reasonable, but entirely excusable to mount a challenge that even the vast majority of your own party rejects as unfounded? And it’s bad that “Trump’s objection […] were endorsed by Trump”? And Trump’s request for Congress to toss actual certified voters was evil, but Democrat’s requests to toss actual certified voters were purely symbolic? Trump is culpable for challenging votes on multiple fronts, but when Democrats did that, they were just exercising their legal rights?

            That is a gobsmacking amount of special pleading packed into one comment.

            1. I think its just because Trump did it. Maybe we can get more “Lawfare” opinions on this ?

            2. One is a much more serious effort than the others. People are rightly more concerned about the more serious effort.

              1. I think my side is more serious than yours. So how do we settle all of this?

          2. Shorter Queen A: “its different when my side does it”

            1. And your position is that every bad thing your friends do is identical to every bad thing someone you disagree with does. Talk about the similarities and differences if you think they’re meaningful.

        3. Yea we’re reaching levels of hypocrisy previously never achieved. Challenging an election is most certainly free speech and protected no matter the “lawfare” lawyers, holy crap do you guy’s beclown yourselves, opinions.

          But wait I guess we can impeach private citizens because that is what Trump is. Or is it just former public officials. So no problem if in 2022 an R majority impeaches Obama who never let a perceived racial inequity go unincited, see numerous riots. He is the definition of leaping to conclusions with violet effects.

          But Black riots don’t matter?

          FFS he sent Federal officials to Michael Browns funeral and then watched Ferguson burn.

          Happy hypocrisy! Lawfare LOL

          1. Trump was impeached while he was president. He will be tried after he is no longer president.

      2. That’s not true at all. The First Amendment still does apply to the ability of the government to fire you for your speech. The key words to find the caselaw about it are “Government as employer”. The rules are somewhat nuanced (as I understand it, you’re generally more free to speak about things and people that are less related to your job, while bad-mouthing your coworkers is less protected). One of the controlling cases is a teacher who wrote a letter to the editor criticizing the superintendent and getting fired for it, which was deemed to be not allowed.

    2. I disagree — an Amendment to the Constitution amends it. Amends all of it.

      1. And yet you’re still wrong.

        1. Only if SCOTUS says so.

          1. While that might be the standard of proof that you require to believe it, the fact remains that you’re still actually wrong right now.

  2. “Imagine that a sitting US Congressperson told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence.”

    Imagine the following situation in the capital.

    “Soon they had descended on the building, banging on the doors and windows, chanting, ‘Let us in! Let us in!’ ­The small contingent of capitol police was quickly overwhelmed. Protesters ripped the hinges of an antique oak door at the State Street entrance and streamed inside. Mike watched in disbelief as the window to Democratic Representative Cory Mason’s office opened right in front of him and protesters began crawling into the building. Once inside, they began unlocking doors and bathroom windows until a sea of thousands had flooded the capitol.”

    The police retreated in the face of the horde, giving up the first floor, then the second. “The protesters ran amok, chanting ‘­This is our house!’ and ‘This is what democracy looks like!’ ” we wrote. “And they then began searching for the Republican senators who had dared to defy the will of the unions.” As the crowd scoured the building looking for the offending legislators, police sneaked them out through an underground tunnel to a government building across the street. But a Democratic representative posted on social media that the Republican senators were escaping through the tunnels, so when the senators came up into the lobby, the mob was there waiting for them

    “The tall windows that framed the lobby were plastered with people yelling and banging on the glass,” we wrote. “They were trapped. ­The senators hid under a stairwell, out of view, while the police ordered a city bus to pull up in front of the building. Officers then formed a human wall on the sidewalk, parting the sea of protesters and creating a pathway for the senators to reach the bus.” ­Once the senators were on board, “the mob on the street began punching the windows and shaking the vehicle. … The police told the senators and staff inside to keep their heads down in case a window shattered.””

    That was 2011. Nancy Pelosi’s response? “An impressive show of Democracy in Action”.

    Now consider if she should be removed from office for her support of Mob Violence.

    1. Given that members of Congress can only be removed by their voters in elections, I guess you’d have to ask Pelosi’s constituents that.

      1. Incorrect. Congress has the power to expel its own members.

      2. Jim Traficant was unavailable for comment.

    2. Armchair, I can see why you might suppose the situations were comparable. Not sure that explanation includes the situations actually being comparable.

      Need to know more about the death toll in Wisconsin, more about Pelosi’s prior efforts to raise and encourage the mob to violence, and more about the election which I presume the mob was there to overturn.

      By the way, who is Mike? And who is this, “we,” who wrote.

    3. One liar quoting two others – Thiessen and Walker.

      Note that this incident took place in Madison, WI, not DC, as A.L. tries to insinuate.

      Note that

      Here’s the local newspaper” account.

      The Capitol overnight crowd had gone mostly silent by 2:15 a.m. Thursday after a nearly continuous stream of protest songs, drumming and the occasional bagpiping since about 7:30 p.m. Wednesday.

      Exactly the same as ransacking offices, stealing computers, threatening to kidnap or kill people. Bagpipes are logically indistinguishable from zip ties after all.

      1. Sorry, did I forget to continue?

        “Thankfully, no one was killed. But during the course of the occupation, Walker received a steady stream of death threats against him and his wife, including one that promised to “gut her like a deer” and one threatening to kill his sons. Police found dozens of .22-caliber bullets scattered across the Capitol grounds. The occupiers drew chalk outlines of fake dead bodies etched with Walker’s name on the floor, and carried signs that read “Death to tyrants,” “The only good Republican is a dead Republican” and one with picture of him in crosshairs with the words, “Don’t retreat, Reload.””

        What was that about death threats?

        And I suppose storming a capital, occupying it, and issuing death threats is OK, so long as it’s just a “state” capital? Then it’s “supporting Democracy”.

        1. Just to be clear two died on Jan 6 due to the Capitol obviously staged riot. One was an unarmed white woman shot by police and the other was a policemen.

          5 policemen died in the Dallas BLM protest. This last year no protestors were shot by police despite burning looting and murdering

          The BLM death toll is I believe 47. So Viking man strolling into the senate writing a note and saying a prayer is an insurrection.

          Actual insurrectionists are in hysterics.

          1. I love how what was going on at the Capitol before the storming is completely elided.

            But, I imagine these folks put very little value on democratic principles and values in general.

        2. Bernard takes a bowling ball on the head from AL.

      2. Bernard11, there are times when zip ties on the bagpiper ought to be a thing.

    4. State capital =/= federal capital, and note that something critical to our very federal democracy was going on at the time. Also, you’re equating praising after the fact with encouraging before hand.

      1. “State capital =/= federal capital”

        Why not? Why is storming and occupying one capital “Democracy in action” while doing the same to a different capital “Assault on Democracy itself”?

        I suppose the only REAL difference is the Politics….

        1. You really don’t think that the federal Capitol is any different than a state capitol? I mean, you do know the former is the *national* seat of government, right?

          I mean, consider how bad Trumpist reasoning is: I can’t think of any possible difference between a state and the federal capitol, therefore it’s just political hypocrisy not to be equally offended by the storming of both.

          1. It is political hypocrisy to not be offended by both.

            When one is actively supported, and the other worthy of “treason”, there’s no other answer than blatant hypocrisy

            1. It’s not hypocrisy as there are important and obvious differences between the two. A state capitol debating a particular law is not the same as the national capital engaged in the transfer of power (that last context is important in explaining the ‘treason’ claim).

              1. It’s OK. You’re a hypocrite.

                1. No, you are bad at context and distinctions.

            2. “It is political hypocrisy to not be offended by both.”

              Then prove to us you’re offended by both!

              1. I do not support invading capitols in either case. I believe those who broke in and violated the law should be arrested and tried.


          2. “federal Capitol is any different than a state capitol”

            Both are glorified government office buildings.

    5. Armchair, here is how a Wisconsin newspaper reportercompares the Madison and DC events. His account doesn’t support your charge of Mob Violence. Some excerpts:

      Wisconsin’s Act 10 protests were overwhelmingly peaceful.
      There were some tense moments — including one in which then-state Sen. Glenn Grothman, a Republican, was heckled and surrounded by protesters until then-Democratic state Rep. Brett Hulsey stepped in to diffuse the situation.
      Grothman, now a U.S. representative, was in his D.C. office when rioters broke into the U.S. Capitol.
      “Obviously there were some of the more outright violent people here [in D.C.],” Grothman said Friday. “It never reached that pitch (during Act 10).”

      The full extent of damage to the U.S. Capitol is not yet known, but it appears from photographs that the historic building sustained millions of dollars in damage. […] Furniture and belongings were damaged or looted. Some who stormed the Capitol spread feces throughout the building, multiple news outlets reported.

      While there was some damage done to the state Capitol in 2011 during the weeks of protests — which included some people sleeping in the statehouse rotunda and halls — there were no reports of looting, ransacking or thefts. […] The state Department of Administration in May 2011 estimated cleanup and overtime costs for the event would reach about $8 million, a total that included about $270,000 for Capitol building repairs. […] “It is important to note that there was no malicious damage,” Huebsch [Mike Huebsch, then Department of Administration Secretary] said at the time. “But that said, this is still a lot of money.”

      1. “Overwhelmingly peaceful”

        I love those types of modifiers. “Mostly peaceful”….”Overwhelmingly peaceful”….. Which means “Partially violent”.

        1. There were fewer than 20 arrests in Madison and none of them involved weapons.
          In D.C. one guy who was arrested had 11 Molotov cocktails in his truck.
          Do you find these to be comparable?

          Or, if your mob violence refers to property damage, I particularly like the bit about how the Madison protesters switched to painter’s tape to hang their signs after officials told them the tape they had been using would leave a residue on the walls. Animals!

          1. “Officers then formed a human wall on the sidewalk, parting the sea of protesters and creating a pathway for the senators to reach the bus.” ­Once the senators were on board, “the mob on the street began punching the windows and shaking the vehicle. …”

            But sure. “Overwhelmingly peaceful”.

            1. You don’t like that reporter’s choice of words, that’s fine.
              Here’s another article with quotes from Wisconsin Republican Glenn Grothman who was at both events:

              Grothman is no stranger to crowds in a capitol. He was serving in the Wisconsin legislature during Act 10 protests.
              “They were different,” Grothman said. “I think the protesters in Madison, I got along very well with them, there were many of them, they stayed there for a month, but they weren’t aggressive or violent.”
              Grothman said what happened in D.C. Wednesday was different than what happened 10 years ago in Madison.
              Charles Tubbs, who was police chief of the Capitol Police Department during Act 10, said the two incidents were different as well. He said there was very minimal damage at the capitol during Act 10, and the only major injury a police offer sustained was in an incident where someone with a mental health crisis climbed to a high location and the officer was hurt trying to help them.

              These articles have direct quotes from named, first-hand witnesses. What is the provenance of that text you are quoting from?

      2. “millions of dollars in damage”

        Oh BS. We all saw the pictures.

        Some broken windows and doors. A single computer was allegedly stolen along with a franked envelope. The “ransacked” offices were files on the floor.

    6. Armchair Lawyer, assume you’re right on the facts being similar (which I totally disagree with, but let’s run with it). You’re saying that because Nancy Pelosi got away with something, that nobody else can ever be held to account? That seriously is your position?

      1. So, I’m saying if you’re going to hold Trump account now, you can STILL hold Pelosi to account.

        Congress can vote to expel her right now for her actions in 2011, if they’re going to vote to impeach Trump for similar actions in 2020.

        If you’re unwilling to expel Pelosi for similar actions, well…. Maybe the actions weren’t that bad.

        1. Or maybe they happened ten years ago, and intervening Republican congresses decided it wasn’t worth their time, so maybe that moment has come and gone.

          1. If it’s a crime, then a mere 10 years shouldn’t matter. Look at Al Franken. He was forced to resign in 2017 for something he did in 2006.

            Does supporting those who would invade a capital really have a “time limit”? Does it make it less a “attack on Democracy itself” to use your words? Shouldn’t such harsh crimes be punished in a non-partisan manner?

            The fact you think Republicans should’ve decided about Pelosi, rather than Democrats or Congress as a whole is concerning. It implies you think that the partisan makeup of Congress matters when determining something is a crime worthy of impeachment/expulsion rather than just the action itself.

            1. No, it means that Republicans, who do not love Nancy Pelosi and would love to find a reason to get rid of her, nevertheless apparently decided that it wasn’t worth pursuing. If what she said really were grounds for expulsion, do you really think the GOP wouldn’t have jumped at the chance? That they didn’t strongly suggests there’s nothing there.

              As others have already pointed out here, the two situations are not the same. But none of this has anything to do with whether Trump is guilty of inciting a riot and, if so, if he ought to be impeached for it. The charges against him stand or fall on their own merits. If you think he didn’t do anything wrong, then say so. If your only defense is that other people did bad things too, that’s a pretty weak argument.

              1. No, what it means is, in BOTH cases, there are no grounds for expulsion/impeachment. And that in this case, it is a purely political stunt by Democrats, with no basis in reality.

                Because when the SAME EXACT thing happened 9 years ago, there wasn’t a peep.

                1. The differences that have been pointed out to you don’t go away just because you use all caps, though I get this is the way Trumpists, following the Leader, think and express themselves.

                  1. The differences were minor at best. Insignificant is the word I’d use. The same amount of people were involved. The only deaths at the US capitol were in the side of the protesters.

                    The fact is you want your team to win. And yes, that makes you a hypocrite.

                    1. “The only deaths at the US capitol were in the side of the protesters.”

                      No, there was that one cop struck by a thrown fire extinguisher.

        2. Ok, I’m willing to expel Pelosi. What’s your response?

          1. Let’s have a bill on the House floor. Mutual impeachment of Nancy Pelosi and Donald Trump for support of riots and insurrection within capitols.

            1. Impeach Pelosi…

              May want to look that up again.

            2. The two aren’t even remotely comparable, but fine with me. Also I don’t think the House impeaches its own members, I think it just expels them.

              1. It does expel, not impeach. Different words, same end result for the most part.

              2. They aren’t that comparable. Nancy Pelosi was actively supporting rioters when they were invading the capital, saying it was “Democracy in action” and that she “Stood in solidarity” with them.

                Trump asked for a peaceful march to the capitol.

                So not “That” comparable.

                But still, a good mutual bill from the House that condemns both would be a good solution

                1. No I meant they weren’t comparable in the sense that what the President did was much worse.

                  1. You can say that until you’re blue in the face. What the president did was NOT worse by any stretch of the imagination. You and your fellow progressives here have it exactly backwards.

                    1. I’m not a “progressive” (however defined). The opposition to the President’s lying and temper tantrum is bipartisan.

            3. This is actually a good idea. If “Supporting rioters” who invade a capitol is a horrible evil idea, a bill/resolution on the House floor as follows.

              1. The House Impeaches Donald Trump for his actions supporting the Capitol Protesters
              2. The House simultaneously expels Nancy Pelosi for her actions supporting the 2011 Wisconsin Capital Protesters.

              You’d probably get some nice bipartisan support there, if it passed.

              Good option?

              1. Among other distinctions AL struggles with, add distinctions in time…

              2. “You’d probably get some nice bipartisan support there, if it passed.”

                You’d also have the overwhelming support of the most liberal wing of the Democratic party.

                1. You think?

                  Anyway, I think they bill should be brought up immediately. You on board?

                  1. I’m on board with expelling Pelosi. I’m not sure you’ve persuaded me that what she said after a protest is sufficient, but I’m ok with her moving on to do something else.

    7. consider if she should be removed from office for her support of Mob Violence.

      1. It wasn’t mob violence. No police were attacked with fire extinguishers or flagpoles. No calls to hang anyone Nobody with zip ties or a spear.

      2. Pelosi did not incite the demonstration. Her comments came after it had started.

      So forget it. You’re making shit up.

      1. ” Officers then formed a human wall on the sidewalk, parting the sea of protesters and creating a pathway for the senators to reach the bus.” ­Once the senators were on board, “the mob on the street began punching the windows and shaking the vehicle. …”

  3. Let’s add on here.

    Let’s imagine that Joe Biden called the 2016 election of President Trump into question by calling him an “illegitimate” president, which called into question the fairness and outcome of the 2016 election.

    Would that be an impeachable offense? According to Keith, that very well may be. If calling an election into doubt is impeachable for Trump, shouldn’t it be impeachable for Biden too?

    1. I’m curious how you can’t grasp that it wasn’t just the mere speaking of words such as ‘the President is illegitimate’ it’s the months long, multi-pronged effort and the rhetoric that surrounded it.

      I mean, look at big baby today not attending the inauguration. That hasn’t happened since Andrew Johnson iirc. The guy does unprecedented stuff. Heck, that’s part of the appeal to many of his fans. I get that. But don’t then run around and say ‘well, all he does is what everyone always has!’ It’s silly.

      1. “big baby today not attending the inauguration”

        And? That’s what happens when Democrats violate “norms” like attending the inaugruration. They get surprised when it gets turned around.

        1. Again, you can’t tell the difference between a President skipping the inauguration and some lawmakers doing the same? You’re not much at distinctions in general, are you?

          1. It’s a logical continuation. It’s what happens when norms are violated.

            1. At least you grasp its a continuation, i.e., an increase or something different. And no, it’s not what happens when norms are violated necessarily. Escalation is not inevitable, someone has to do that next step and/or persons like yourself have to dismiss or embrace it as a further step.

              Trump is following the precedent of *Andrew Johnson* for pete’s sake in being the first President in 150 years to voluntarily not be there for the peaceful transfer of power. He’s a wretched baby man who cannot put the well being and institutions of our nation ahead of his personal feelings and ego.

              1. It’s what happens when you violate norms. You shouldn’t be surprised if they continue to be violated. This is a result of Democratic actions and the logical continuation.

                1. No, it’s not. Escalation is not inevitable, someone has to do that next step and/or persons like yourself have to dismiss or embrace it as a further step.

            2. There’s nothing “logical” about the continuation of your broken reasoning, but let’s chase it as far as it goes. I’m ok expelling the 60 democrats who didn’t attend President Trump’s inauguration, if you’re ok expelling the republicans who objected to the 2020 election results.

              1. Sure there is. When you have such vast numbers of people “skipping” the inauguration to make a political statement, you shouldn’t be surprised when others do it.

                1. Maybe a President is different than a Congressperson? Almost like they represent, say, the entire nation while the latter a tiny sliver of same…And so since a President is different than a Congressperson it might be a different thing when they do something that some (and a minority even at that) Congresspersons in the past have done.

                2. Right. The President is the victim here. He has no agency. His failure to attend his successor’s inauguration can only be explained by being overcome by democrats not attending his inauguration. If those 60 democrats had showed up, surely the President would attend today. Because it’s not completely within his nature to be a big piece of shit crybaby just for the sake of it, he only does it in retaliation. ROK!

                  Let me be clear about one thing. I am not surprised at all that President Trump is skipping the inauguration. It’s about the most typical thing this President could do (maybe besides pardoning a criminal who defrauded the President’s most ardent supporters out of money by lying to them about building the President’s fake wall).

                3. Right. The President is the victim here. He has no agency. His failure to attend his successor’s inauguration can only be explained by being overcome by democrats not attending his inauguration. If those 60 democrats had showed up, surely the President would attend today. Because it’s not completely within his nature to be a big piece of shit crybaby just for the sake of it, he only does it in retaliation. ROK!

                  Let me be clear about one thing. I am not surprised at all that President Trump is skipping the inauguration. It’s about the most typical thing this President could do (maybe besides pardoning a criminal who defrauded the President’s most ardent supporters out of money by lying to them about building the President’s fake wall).

      2. “The guy does unprecedented stuff. ”

        Third time is “unprecedented”?

        Its really too bad Biden had such a poor turnout today. Sad.

    2. “Let’s imagine that Joe Biden called the 2016 election of President Trump into question by calling him an “illegitimate” president, which called into question the fairness and outcome of the 2016 election.”

      That would be odd, since it was Joe Biden who certified President Trump’s victory. The better analogy would be what if Hillary Clinton and Barack Obama filed dozens of lawsuits, repeated lies about the election, and demanded that VP Biden not certify the election, and then people died after a bunch of the constituents who were lied to stormed the capitol. That would be an impeachable offense against President Obama (and something against Hillary Clinton).

      1. What if instead, Hillary Clinton coordinated with an agent of a foreign government to attempt to overturn the 2016 election results?

        1. She coordinated to overturn the election results before the election happened?

          This is the kind of sloppy thinking that goes hand in hand with general conspiracy thinking.

          1. “Contingency planning”….

        2. What a scandal that would be! But frankly it’s nothing compared to her leading the Benghazi attack and murdering Vince Foster and Jeffrey Epstein.

  4. This post is just lawyer feelings andbias for the Deep State. Behind it is a tactic to avoid facing Trump in 2024, with his unique celebrity and charisma. After the agonies Biden will inflict, Trump will be a shoo in. Republicans should imitate all those California cheating techniques. At 3 AM, backup the trucks, with millions of freshly printed, unfolded ballots with just the presidential vote checked off. Let it be a battle of the printers.

    1. You’re ridiculous. Yes, of course the only way Biden won *California* was all that cheating. Nutty conspiracy thinking. The essence of Trumpism.

      1. California has many other methods of cheating. Collect ballots, throw them in the trash is in a Republican district. Go to a nursing home, and help an Alzheimer patient fill out the ballot. Democrat mailman throws ballots in trash. Allow millions of illegals to vote for Democrats. Bus illegals from district to district to repeatedly vote for Democrats. Any request for verification is racist. Welcome to Venezuela, America.

        Venezuela recently solved its toilet paper shortage. It has a food shortage.

        1. You’re a conspiracy nut. There’s no evidence any of that happens outside of your fevered conspiracy theories. And, it’s just extra preposterous because you don’t need such wacky theories to explain something that has such a simple to understand phenomena: Republicans are not a very popular party in California (like Democrats aren’t in Alabama). There’s no need to cook up wacky theories and unsupported allegations to explain their lack of success there. The fact that you and other Trumpists go ahead and do so anyway shows how extremely nutty you and they are.

          1. DB is usually a nut but he adequately describes ballot harvesting in California.

  5. More Keith Whittington, please.

    That said, there is this:

    When drafting the Bill of Rights, James Madison took care to include only provisions that he thought were compatible with the existing body of the Constitution drafted in 1787. The adoption of the First Amendment, from Madison’s perspective, would reaffirm what was already true about the Constitution, not carve out new exceptions to it. It is inconceivable that Madison would have thought that his proposed affirmation that the freedom of speech may not be abridged by the new federal government meant that an exception was being carved out of the power of Congress to impeach and remove officers for high crimes and misdemeanors.

    That bit about Madison taking care to leave the existing Constitution unmodified is something I did not know, and seems potentially consequential. I would very much like to see more from Whittington, explaining on what historical sources he relies for that conclusion.

    Also, there is that always-historically-suspect, “would have,” construction, which shows up so often when non-historians set out to read present-minded stuff back into the past. Not saying Whittington is doing that. He writes like someone who knows something about the methods of history. I just want to see his insight into Madison and the Bill of Rights nailed down, so I can use it myself. Where Whittington says, “It is inconceivable . . . ,” I become mindful that no, it isn’t—at least not among the commenters on this blog.

    Just a bit more historical support, please, Professor Whittington.

    1. This is likely a reference to the opposition to the Bill of Rights by the Federalists. They argument they offered was that by “codifying” certain rights it would create a scenario by which future government actors would think “Well… that right isn’t codified therefore it isn’t a right. Thus, we can do what we want in this area, citizens be damned!” The Anti-Federalists argued that if you didn’t attempt to expressly state that citizens had rights that must be recognized by the state then we would already be in that danger zone except that it would start out with all rights being in danger.

      That is my understanding of the reference to Madison. Could be wrong though. Known to happen… even if only rarely.

      1. sparkstable — I thought about that too, as a surmise. I’m hoping I’m wrong, because if Whittington really knows of something in the historical record, then that goes a way to answer a bunch of questions which come up again and again. And I do think Whittington sounds like he knows what historical methods are supposed to be. But maybe not.

  6. I absolutely agree. Freedom of speech might be a moral defense, it isn’t a legal defense. There IS no legal defense, as a practical matter you can impeach over literally anything.

    Factual innocence of the charges isn’t particularly a defense, either. His only real defense is the political reality that voting for conviction is political suicide for most Republican Senators.

    I wonder if he can call as a witness Democratic House members who’d challenged the electoral votes of Republican Presidents in previous elections? And maybe Barbara Boxer, as well?

  7. So, Mr. Whittington, what is the real point of all this in regards to impeachment.

    1. Congress CAN impeach a person for any reason it wants.

    2. But Congress SHOULD apply an equal standard to its impeachments. If it is willing to impeach one person for a reason, it should be equally willing to impeach a different person for the same reason.

    3. The best way (IMO) to enforce this equality is to limit impeachments to things that actually violate the criminal code. You could in theory expand it. But I find it unlikely that Congress would use equality in enforcement for items that didn’t actually break the law. See the Pelosi example above.

    4. IF you have inequality in impeachment causes. IE, if Congress is willing to impeach one person for a reason, but not a different person for the same reason…then impeachment just becomes a political tool, not one of equal enforcement.

    5. If impeachment is just a political tool, you should expect it to be voted on as such, and treated as such. Impeachment as a purely political tool is bad idea in the long term, as it removes the ability for cohesion in needing to impeach people who actually deserve it. But it’s the logical end conclusion. And the logical end conclusion for the actions Mr Whittington suggests.

    1. This completely misses the point; most of this was already foreseen in Federalist no. 65. Here’s a key part from the opening:

      “A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”

      So to answer your questions-

      1. Of course Congress can impeach (and convict) for any reason it wants, just like it can declare war for any reason it wants. Ultimately, we have to elect good and sane representatives with some sense of propriety and duty.

      2. Of course not. There is no “standard,” and it would never bind another Congress anyway. How much “insurrection” is enough? Or, put another way, maladministration is certainly grounds for impeachment, but is golfing a lot grounds, or does it take complete abdication of your duties, or something in between?

      3. That makes no sense, because to start with that isn’t what existed at the time of impeachment (criminal law was not statutory, and impeachment wasn’t for “crimes” as we understood them), and in addition, crimes are created by the body you are discussing.

      4. Again, so what? It’s a matter of discernment. If we find out Grenada does something bad, and we find out China does something bad, we might have different military options because it’s a matter of discernment. Different facts lead to different outcomes.

      5. I think that you misunderstand how …. unhappy … many within not just the Democratic Party, but the GOP as well, have become with the culmination of recent events on January 6. You are welcome to continue saying, “But BLM! And they were just having a happy college festival! But Pelosi!” But the actual reactions of many of the people involved, including Republicans, indicates that this goes beyond pure politics.

      But, that’s why they have the trial. Feel free to continue to agitate for your beliefs as you continue to do. 🙂

      1. ” maladministration is certainly grounds for impeachment”

        The original text had the standard as “maladministration” and then that was changed to “high crimes and misdemeanors” because the former was thought too broad and vague.

        So, no, you cannot impeach for maladministration.

        Which also refutes the argument that Congress may impeach for whatever it likes.

        1. I believe in an earlier thread you conceded Congress gets to decide on matters of impeachment what is unconstitutional. It seems to me if the Constitution gave Congress the power to decide what is unconstitutional, and then “whatever Congress says” is determinative (including maladministration, even if you think Congress is wrong).

          1. That is a continuation of the fallacy that because something is unreviewable, the person or body can do whatever he fancies.

            Congressmen take an oath to uphold the Constitution. If the Constitution sets a standard for something, then they are duty bound to follow it. The fact that they can dishonestly ignore the Constitiution does not legitimate their actions.

            From the history of the Impeachment Clause, it is clear that there are some actions (or inactions) that would have been a basis for impeachment as “maladministration” but not “high crimes and misdemeanors.” A Congressman who impeaches a federeal officer for such an action violates his oath, and a Senator who votes to remove a federal officer for such reason likewise violates his oath.

            1. I thought you agreed it was the text of the Constitution that gave Congress the last word, and thus “whatever Congress says” must be constitutional (no matter what you think is “clear”).

              1. You really have things botched up. Frankly, this is a post-modern problem.

                Let’s put it this way. The Constitution is not Humpty Dumpty. It does not mean that whoever has power can redefine words to mean whatever they want, as is convenient for the moment. Words have meaning. While there is always room for interpretation in grey areas, at some point you are not interpreting but ignoring.

                The Constitution says that the Senate must “try” an impeachment, and that must be done “on Oath or Affirmation.” The oath is to uphold the Constitution and its provisions, not do whatever they want and can get away with.

                Suppose the Senate “tries” an impeachment case by flipping a coin. (Justice Souter hypothesized that very thing). That is a violation of the Senators’ oath, notwithstanding the fact that the Senate is granted the “sole” power to try impeachments.

                1. Do you have the Souter citation? I ask because if the text of the Constitution gives the Senate the sole power to try impeachments, then what is Souter’s argument they can’t flip a coin to make that determination (your “Oath” argument begs the question that the Constitution does not permit flipping of a coin).

                  1. (1) SOuter’s is a concurrence. The decision is here:

                    One can, nevertheless, envision different and unusual circumstances that might justify a more searching review of impeachment proceedings. If the Senate were to act in a manner seriously threatening the integrity of its results, convicting, say, upon a coin toss, or upon a summary determination that an officer of the United States was simply “a bad guy,”, judicial interference might well be appropriate.

                    (2) An oath is supposed to ensure a person does something in a proper manner. You don’t need an oath to do whatever you like.

                    That’s the point, the Senate has to take an oath, because they are solemnly committing to try the federal officer by the Constitution and whatever rules the Senate has adopted.

                    You keep coming back to the same mistake. “I have the power to do something” is not the same as “I can do whatever I like in exercsing that power.”

                    L’etat c’est moi may have worked for Louis XIV. It does not work in a Constitutional republic.

                  2. Sorry, left off the link:

                    Nixon v. United States, 506 U.S. 224 (1993)

                    1. You keep coming back to the same mistake. “I have the power to do something” is not the same as “I can do whatever I like in exercising that power.”

                      Of course as a logical construct in isolation, that statement is true because there may be constraints on that power. However, you keep making the same mistake in this application by begging the question that power of impeachment is constrained by the Constitution’s text to not include doing “whatever I like.”

                      Souter does not beg the question because he does not accept that the Constitution gives Congress the sole authority to determine the scope of the impeachment power in all cases. The weakness of his argument is his principle for deciding when courts can intervene (“the Senate […] act[ing] in a manner seriously threatening the integrity of its results”) is hopelessly vague.

              2. Part of the problem is that today oaths are viewed as trival things. When Bill Clinton committed perjury, lots of people wondered what the big deal is. But the 18th century sources indicate that false oaths were considered very wicked behavior, something like we thing of pedophilia today.

    2. “The best way (IMO) to enforce this equality is to limit impeachments to things that actually violate the criminal code.”

      Impeachments have included things that aren’t violations of criminal code since the dawn of the republic.

      1. For example?

        1. The second person impeached was John Pickering. One of the articles was for intoxication caused by “the free and intemperate use of intoxicating liquors” and invoking the lord’s name “in a most profane and indecent manner”.

        2. Samuel Chase was impeached in 1804 based on a variety of complaints about his handling of cases.

        3. There was also a Missouri judge whose name is now escaping me who was impeached in the 1800s for being verbally abusive to counsel and litigants.

  8. Again, my position is that the First Amendment applies. It would have been a total violation of theircoathsbof office if Congress had impeached Truman for insulting it by calling it a “Do Nothing Congress.” High crimes and misfemeanors imply criminality. That which the constitution prohibits making a crime can be neither a high crime nor a misdemeanor.

    However, Trump’s conduct is not protected by the First Amendment. Trump’s speech was very arguably “directed to inciting or producing imminent lawless action,” the Brandenburg v. Ohio standard. And because a President, unlike an ordinary citizen, has a duty to preserve the peace and protect the Capitol, it is sufficient to establish that a President acted recklessly rather than intentionally. And given the President’s responsibility for security at the Capitol, there may well be evidence of intent.

    1. The President is not responsible for the security of the Capitol.
      The Speaker of the House is responsible and has a police force of thousands.
      Typical leftist. All emotion no knowledge.

      1. The Executive branch is responsible for the Ntional Guard.

        1. A few minor details:
          The Governors of the states are responsible for the ‘National’ Guard.
          For the President, as commander in chief, (not the executive branch itself) to become responsible for the Guard, it has to be federalized into the US Army. At which point, it (theoretically*) cannot be used for domestic policing.

          (* ignore Little Rock)

          1. Notice the troops ringing the Capitol now? The Pentagon ordered National Guard troops to protect the Capitol sfter it was stormed. They should have done it before, when the FBI alert came in.

            1. They offered, they were turned down.

            2. “Notice the troops ringing the Capitol now?”

              20,000+ soldiers to defend against a non-existent threat. No bullets in their rifles. Security theater.

          2. The D.C. National Guard does in fact report to the President. Ask Ed about this, as he got embarrassed a few weeks ago after making the claim that the D.C. Mayor controlled the D.C. National Guard.

    2. Let’s say a President were to, in response to a judicial opinion he did not like, go out and make public statements and addresses for days and days that the judge was a ‘Mexican judge’ and that Mexicans cannot be trusted, that the Mexican judge had thwarted the rights and interest of ‘real Americans.’ He did this for weeks and weeks. The judge is harrassed, indeed Mexican and Mexican-Americans around the country are harassed and one protest/rally Mexican-Americans are harmed.

      You don’t think that would be impeachable?

      1. I think it could fit. The first question is if the harassment is lawless, i.e. threats or similar rather than mere harsh criticism. The second is whether he incited it.

        He doesn’t have to act intentionally, just recklessy. And in the hypothetical you gave, where he keeps at it despite continued harassment, that sounds pretty reckless to me, especially if the harassers themselves say, as they did in Trump’s case, that they did because the President told them to.

        1. I think just a President talking in such a plainly bigoted way is impeachable. He represents the nation while in office, if we have a President saying such reckless, awful things then impeachment would be warranted.

          Other examples come readily to mind. Let’s say that a President had a business connection to a drug company and the President started to regularly urge that people take the drug for a non-prescribed use, he talks up how great it is, how the FDA and doctors who say not to use it in this way are wrong and corrupt, he says outlandish things about the FDA and doctors who speak out against his urgings, that people take the drug as urged and some get sick.

          I think no law is likely broken here, but impeachment of the President for that would be warranted.

          Presidents don’t just have rights, they have duties. Reckless speech can violate those duties.

          1. If a President libeled someone, he could be found criminally liable for that and hence he could be impeached. But if he merely criticized in strong language, with no libel, no inciting others to engage in criminal, and no anything else, I don’t think he could be impeached for that.

            Again, do want a situation where whwnever both houses of Congress have the necessary majority in the same party, they could impeach a President for making a speech they disagree with, say Truman calling Congress a Do Nothing Congress? They could impeach at will if that were constitutional.

            There has to be a standard distinguishes what Truman did from what Trump did. I think the First Amendment supplies that standard. What Truman did was clearly protected by the First Amendment. I think that what Trump did was not.

            1. Who enforces your standard that protected speech is not impeachable?

    3. And because a President, unlike an ordinary citizen, has a duty to preserve the peace and protect the Capitol, it is sufficient to establish that a President acted recklessly rather than intentionally

      That sounds like a more lax standard than Brandenberg. Why does Congress have the power to interpret a more lax standard for the First Amendment in cases of impeachment but not the power to interpret the First Amendment does not apply at all?

      1. Because a President, unlike an ordinary citizen, has a duty he can be found liable for imposing. Recklessness standards exist under the First Amendment. For example, one can be found guilty of criminal liable if one merely acts recklessly, not intentionally. Where there is a duty towards others, the standard is less. Consistent with the First Amendment.

        1. Sorry, liable for violating, and criminal libel.

        2. Of course reckless conduct is sufficient to establish criminal liability. But, what precedent supports criminal liability for reckless speech? And, what precedent supports a different standard of criminal liability for speech for a person having a duty towards others?

          1. Some things in life are unprecedented. You have to make the best call you can based on analogies to cases that aren’t exactly on point. I’ve used criminal libel to generalize to the idea that when there is a duty to others, the constitution doesn’t require intent to convict someone of a crime for speech that violates that duty.

            And no, there’s no precedent at all for a President who calls his Vice President and other leaders traitors, falsely claims the election has been stolen from him, and urges his followers to march on the Capitol and act forcefully to stop Congress from certifying the election results.

            1. You have to make the best call you can based on analogies to cases that aren’t exactly on point

              Isn’t the “you” in this case Congress? And if Congress has the power to set precedent in how to interpret the First Amendment, why can’t it interpret the First Amendment to not apply at all to impeachment?

          2. Also, you may be misunderstanding me. I am saying that a President can only be impeached for speech that is not protected by the First Amendment. My analogy to criminal libel explains why I think the President’s speech just before the Capitol was stormed, which I think was reckless whether or not intentional, is not protected by the First Amendment and can be criminalized consistent with it, just like libel.

          3. It may not be true for every duty. But I think a President’s duty to protect the Capitol from being stormed and Congress taken hostage is at least as important a duty as a private citizen’s duty not to damage others’ reputations, and hence also lightens the First Amendment burden for criminalization of conduct violating that duty, just like criminal libel. There’s no precedent. No President has tried it before. I’m just saying what I think.

  9. I agree that one who “told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence” is not immune from impeachment: a trial should occur and in such trial the fact-finder must actually find that flagrant public lies were told and that false statements were made.

    I remain proud of the filing by Detroit which claimed not that its election results were accurate but instead that such results were not unusually inaccurate: the difference is significant and seems to be drifting into the sands of purposeful forgetfulness. I have attempted, unsuccessfully, to find accurate election results in uncontested states (particularly New York and Virginia, as mentioned in a post many weeks ago) and having failed to find such accuracy cannot with certainty find “flagrant public lies” or “false statements” regarding election results. Numerous dismissals on legal rather than factual grounds tend to underscore the dearth of fact.

    Facts, once fully presented, may not comport with prevailing punditry: the sun may indeed not orbit the earth. Do we then slaughter those who spoke such heresy or do we take action based on the facts? And if action is proper, what action should it be?

    I am of the belief that both the Dominion litigation and the impeachment trial will lead to unintended consequences but that both should go forward despite the [four] potential outcomes.

    1. “Numerous dismissals on legal rather than factual grounds tend to underscore the dearth of fact.”

      As has been repeatedly pointed out, not every dismissal was procedural.

      More telling are the vast number of times that the Trump Campaign dismissed their claims just prior to an evidentiary hearing, where they would have been able to present evidence and testimony under oath and chose not to.

      “I have attempted, unsuccessfully, to find accurate election results in uncontested states (particularly New York and Virginia, as mentioned in a post many weeks ago)”

      The New York election results are certified and have been available since December 3, and can be found quite easily. The Virginia results were certified on November 20, and are also available on-line (you have to look for the official results).

      Why did you post this?

      1. This is the kind of arguments Trumpists make, embarrassingly bad. One great thing that could come from Trump’s defeat and/or impeachment might be smarter leaders for one of our two major parties. We would all benefit from that.

  10. The First Amendment says “Congress shall make no law…” Impeachment and lawmaking are two different things.

  11. Slightly off topic, but I can’t resist sharing A Belated Christmas Carol for Our Time:

    “Trump is leaving,” hear the angels sing
    Saints and seraphim their anthems bring
    Heaven’s vault with loud hosannas rings
    Things can only go back up from here.

  12. So none of the media created strawmen came to pass…

    Trump left the White House voluntarily.

    No 11th hour attempt to intervene with the military to keep him in office.

    No real threat to any kind of transition of power.

    No “self-pardon”.

    No family pardons.

    No “pre-emptive pardon”.

    Nothing. Absolutely nothing here on January 20th.

    The liberal media should be ashamed of itself for how it acted the last 4 years.

    1. Yes, he took a shit on the kitchen floor, but hey, he didn’t smear it all over the walls like you said he would honey, so you should be ashamed of yourself!

      1. Queenie. I love how Trump makes people feel. You are quite emotional about him.

        1. I find him laughable. Talk about emotional, he and his followers are the most thin skinned people I have heard of.

    2. How much of that came from the blowback he got after he incited a riot on January 6?

      1. What riot?

        Do you mean the mostly peaceful protest for voters rights that took place on that day?

        1. So just to be clear, your position is that there was no riot at the Capitol on January 6? That’s your position?

          1. What I saw happen was a mostly peaceful protest.

          2. It was a mostly peaceful protest. It wasn’t even fiery. If you do not like how these events are described in modern parlance, I suggest you take it up with the media and politicians who are so shamelessly highlighting isolated instances of property destruction and calls to stop the steal to motivate their base.

            1. A solution that is 1% poison and 99% harmless is “mostly” harmless but that’s not the point. There was a riot at the Capitol, even if “most” of the protesters were peaceful. Trump incited it, and I hope he’s held to account.

              1. How did Trump incite it?

                1. If I tell you, do you promise to stop pretending it didn’t happen?

                2. And by the way, you’re starting to remind me of my late aunt, whose policy was that when one child did something requiring discipline, she had to then find something every other child had done and discipline everybody. If one child is getting a spanking, then everyone is getting a spanking, no matter how strained any connection might be.

                  Her children grew up hating each other — and her. But I have to hand it to her, she taught me that if you are determined to find something bad that someone else did, you can always do it.

              2. So why was this excuse used ad nauseam to justify BLM violence (it wasn’t the actual protesters but a criminal element who is taking advantage of the cover, excuse that is) and no one seemed to care about all the incitement that happened this summer. The whole “George Floyd” thing was nothing but stoking the fires of racial hate in hopes of sparking civil unrest.

                1. Jimmy, I think you would be hard pressed to find any Democrats saying or doing anything to encourage the violence, unlike Trump’s comments just before the Capitol insurrection. The Democrats, and the media, all drew a distinction between those that were peaceful and those that weren’t. And, on the other side of it, I have no problem with the people who peacefully marched to the Capitol on January 6; it’s the ones engaged in riots and insurrection that need to be held accountable.

                  In both cases, the marchers were mostly peaceful, with some engaged in violent behavior. The thing that is different is that with the BLM, you did not have the President — or any prominent Democrat — saying things that sound a lot like encouragement of rioting.

    3. No nuclear war.
      No war with Iran.
      No wars period.
      No international incidents.
      No race-based policies of any kind.
      No market crash.
      No emoluments issues.
      No environmental disaster or anything out of the ordinary.
      No collusion with any foreign governments.

      Every story the news media leftists made up turned out to be false, as always.

      1. It must be terrible for you to have to live with Early-Onset Dementia.

    4. “So none of the media created strawmen came to pass…”

      You mean besides the insurrection?

    5. “The liberal media should be ashamed of itself for how it acted the last 4 years.”

      Yes, the media should be ashamed that they failed to anticipate that the President would be successfully talked out of pardoning himself and his family hours before the deadline, based on his own counsel telling him that doing so would damage the political trial set to take place on his impeachment for promoting insurrection on false grounds. You really showed the media, they were totally wrong about this asshole!

      1. You have any cites for those assertions? Or are they similar to the assertions that didn’t come to pass after all?

        1. Re: Cipollone talking him out of it, see here.

          1. Oh, an anti Trump site quotes the leading anti Trump paper regarding “reports”. Very conclusive.

            Hundreds of these stories over the last 4 years. A handful were even true.

            1. What’s the point of asking for cites if you don’t care about them? Here it is from CNN. I can’t force Breitbart or OANN to report on things they don’t want to report on. But what difference does it make? You don’t care if Cipollone talked him out of it, or not. You’ll be a loser hack about it no matter what. The White House isn’t denying it, but even if they admit it tomorrow, you’ll just say “see the president isn’t as bad as you thought, since he listened to Barr and Cipollone.” America’s frustration is that the president has to be talked out of it in the first place.

              1. “multiple sources familiar with the matter tell CNN. ”
                “sources say.”
                “one person close to the White House said.”
                “sources say”
                “according to two sources. ”

                Well, I’m bored of that already. Barely made it half way. A Nony Mous, to the rescue.

              2. “America’s frustration”

                No, your frustration.

                I didn’t ask for a cite but unless it quotes a named, on the record source, its always worthless until confirmed on the record.

                1. Why would a named source matter? They could be making it up.

                  This is a fucking shell game with y’all. Do you know why people thought President Trump might consider pardoning himself? Because he’s an asshole, narcissistic criminal based on a lifetime of experience everyone who has dealt with him knows about.

                  But don’t take my word for it. When Matt Gaetz tweeted that “President Trump should pardon Flynn, the Thanksgiving turkey, and everyone from himself, to his admin, to Joe Exotic if he has to” the President retweeted it. Two years ago the President tweeted that he had the absolute right to pardon himself. Are you so naive that you think it’s unlikely he discussed this with anybody?

                  What difference does it make? You don’t care. The President’s conduct has not has anything to do with whether you’ll defend him for four years, so why should it matter now? Can we just jump to the part where you admit the President did what everyone knows he did, but that you didn’t actually care about him doing that, because libs or something? Having you (of all people) pretend to care about confirmation, facts, etc. is a fucking joke.

          2. The Hill says “The New York Times reported” with a link to a NY Times story that never once mentions Cipollone.

            MSM where the facts are made up, and the truth don’t matter.

            1. You can google two NYT articles discussing Cipollone. Or the CNN link above.

  13. Keith, why should we take your arguments at face value? You’ve been arguing for impeaching Trump since 2017. You’re a partisan. That largely disqualifies your analysis.

    1. The fancy legal analysis and technical language just mask plain hate. The lawyer is just a rent seeking agent of the Deep State, and dismissed. No different from David Duke hating Jews and Blacks. The lawyer’s hate is for America. Lawyer scum bag traitors.

    2. He’s a conservative Republican iirc. It’s just that Trump and his followers have embarrassingly bad arguments on this and many other things involving their cult leader.

    3. If you dislike polemically partisan analysis, what brings you to the Volokh Conspiracy?

      The historical accuracy of Today In Supreme Court History?

      The updates to Josh Blackman’s 147-page resume?

      The racial slurs?

      Checking for Todd Zywicki’s triumphant return?

      My tuneful tips?

  14. So does Whittington agree that the president could be impeached and removed for the stated and sole reason that the president is a Muslim.

    1. Well, let’s make it easier instead of trying to be all “edgy.”

      Let’s say the President is a devout Christian, and accepts Jesus Christ as his lord and savior. But his personal conception of Christianity requires him to nuke all the heathens, which is to say, Muslims, Jews, Catholics, Buddhists, and so on. And he is quite sincere that he plans on doing it, and has announced plans to do it in a few days.

      Now, while there might be some free exercise jurisprudence that says, “Hey now! That’s a sincerely held religious belief. Congress can’t be all meanie and impeach him for that.” I would say that this is the type of maladministration that would be just fine in terms of impeachment. They are more than welcome to make that judgment, even considering that it is based on his religious beliefs.

      1. ‘Now, while there might be some free exercise jurisprudence that says, “Hey now! That’s a sincerely held religious belief. Congress can’t be all meanie and impeach him for that.”’

        Have you seen any such jurisprudence?

        1. That’s pretty standard free exercise jurisprudence.

          I’ll wait for the Tillman/Blackman special to apply it to impeachment. Well, assuming it is a Republican. 🙂

          1. “That’s pretty standard free exercise jurisprudence.”

            Nuking heathens?

            1. Sincerely held religious belief.

              Since I don’t know if you have any knowledge in the subject, I’m answering. If I think you’re being a snarky jerk, don’t expect any further substantive legal responses in the future on any threads.


              1. “a snarky jerk”

                Or, an alternate explanation, I didn’t understand your reference to nuking heathens or how this involved religious freedom.

            2. Free Exercise jurisprudence says your religious beliefs are whatever you honestly say they are, including nuking heathens. On the other hand, perhaps impeaching someone for wanting to nuke anyone for their beliefs, religious or secular, suffices as a neutral and generally applicable rule that fends off a Free Exercise challenge (noting I agree with loki on the general point that the Free Exercise clause is not a defense to impeachment).

              1. Perhaps I was distracted by his discussion of a Presidential plan to nuke heathens – and didn’t see how any possible interpretation of religious freedom could cover such a plan.

                Now he’s annoyed that I didn’t get his point, and wasn’t able to see the connection with religious freedom. 🙁

    2. It is at least an open question as to whether the No Religious Test clause applies and whether the courts could intervene on that basis.

      1. That’s why I made sure to base the hypothetical in on post-election speech evincing religious belief.

        While there isn’t caselaw (or really history) on the clause, it applies in terms of qualifications- that’s why it’s in Art. VI with the oath (think in terms of swearing the oath). You couldn’t keep a person out of office due to their religion. But once they are in office, they could not claim that they had a sincerely held belief that they must stay, like, really really drunk all the time and that would apply.

        In short- “No Catholics Can Be a Federal Judge” is different than impeachment and conviction for what happens while in office.

        (And, fwiw, the reason I didn’t engage in the first “gotcha” hypothetical is because there is always a strong political constrain on impeachment. In other words, if the Country elected a Muslim President, and the Congress and Senate immediately moved to impeach and convict her because she’s a Muslim with no other basis … then something has gone so very wrong somewhere that it’s kind of pointless to be arguing about what the law is.)

        1. In other words, if the Country elected a Muslim President, and the Congress and Senate immediately moved to impeach and convict her because she’s a Muslim with no other basis … then something has gone so very wrong somewhere that it’s kind of pointless to be arguing about what the law is.


          But it’s pretty much what has gone very wrong with the impeachment of Trump, and what I think Blackman’s point is.

          Are there any limits, whatsoever, on the impeachment and removal of the president? If not, then the president can be removed for being a Muslim. Full stop.

  15. The impeachment charge invokes Section 3 of the Fourteenth Amendment – and to my knowledge this is the first time since Victor Berger 100 years ago that that section has been officially invoked (as opposed to yakked about in print or online).

    So this seems like the most profitable discussion for a legal blog – did Trump engage in insurrection against the Constitution? And which other public officials would be vulnerable under a broad interpretation of that section – bearing in mind that the sanction is permanent disqualification from state or federal office.

    1. “The impeachment charge invokes Section 3 of the Fourteenth Amendment”

      It is invoked, but it is not a predicate. The wording is more of a throw-in, a support. That’s why it’s stated after impeachment with “Further …”

      I would say that it is not exactly superfluous, as much as, “Hey, there’s a reason that this type of conduct warrant disqualification; it’s so nice it’s mentioned twice.”

      1. Can they vote to convict on this article while holding a mental reservation that he didn’t commit insurrection against the Constitution?

        I think they’d *have* to believe it in order to convict, otherwise, why is it in there? Garnish?

        1. First, I explained why it’s in there. The trial is only happening to disqualify him from future office now that he is gone (theoretically, if things had continued to spiral, the Senate could have re-convened for a quick vote and removal, but that’s not the case).

          This provide further textual support for the idea that insurrection is such anathema it disqualifies you from office.

          The actual charge refers to the conduct to subvert and obstruct the election results both generally and specifically (Georgia), leading up to the events of January 6, 2021. Which in turn “threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government.”

          More simply, the campaign of events leading up to January 6, 2021, not just the day itself, is the charge because it incited violence against the Government of the United States.

          1. So, you believe Section 3 *does* apply? Or not?

            1. My opinion is that it’s irrelevant to the substance of the charge.

              But, you know, it’s not like I’m a House Manager for the trial, so take it for what you will.

              1. They’re masters of their own plea, and they put in Section 3. It would be weird of they ran away from it now, and I’m not sure they can unless they amend the article.

                1. But that’s not the basis. Look at the wording!

                  They impeached him. Art. I, sec. III already provides that in cases of impeachment, judgment includes “disqualification[.]”

                  Which is why the charge is impeachment, and “Further ….” It is also noting that there is an entire, separate, provision that allows for disqualification for office! For “engag[ing in] insurrection”!

                  Basically, if the Senate convicts, this provides further reason that the judgment should include disqualification from office; this is the type of maladministration that the judgment should include that remedy.

                  1. One quibble – the Framers specifically rejected “maladministration” as a basis for impeachment.


                    1. I use the phrase maladministration in the strict sense that it comes from Blackstone’s conception of the crimes and misdemeanors for which impeachment is a remedy.

                      The adoption of the phrase while understanding and using Blackstone certainly brought with it the exact same understanding of “maladministration” that Blackstone had when he used crimes & misdemanors; if you go beyond that basic document that you linked to (which is useful) you would know that it this was a battle between George Mason and Madison- Mason arguing for the Americanization “maladministration” and Madison rejecting it as being to broad. The compromise was HC&M, which (see commentaries) includes “the maladministration of such high offices, as are in public trust and employment …”

                      There’s a good bit of history in there that is interesting, but I think that the best the history can show is that Madison believed that the Americanized phrase would lead to the use of it to impeach for policy grounds, whereas the use of it as a term of art (from Blackstone via Mason) would include maladministration as it was traditionally thought of as crimes against the public.

                    2. “if you go beyond that basic document…you would know…”


                    3. …well, so much for taking the time out to engage.

                      Have a great day!

                    4. OK, I’m sorry I called you touchy.

                2. They included it because plan B, after he’s acquitted, is to argue in and out of court that he’s already disqualified on the basis of Section 3 even without being convicted.

                  They were just laying the groundwork for several states to refuse to allow him on the ballot, and then refusing to certify electors from the states that he did carry.

    2. “So this seems like the most profitable discussion for a legal blog – did Trump engage in insurrection against the Constitution? ”

      They’re mostly avoiding that topic; Some because they treat his guilt as manifestly obvious beyond any need for proof, some because it’s irrelevant to whether Congress can impeach him.

      1. Congress could certainly impeach him without mentioning Section 3, but what in fact they did was have a single article whose verbiage included an invocation of Section 3.

        Who knows what they’ll do *if* there’s an acquittal.

        1. I’m betting they go with a resolution of censure citing Section 3, and asserting that Trump is constitutionally disqualified from holding any federal office on that basis.

          That would tee up the efforts to deny him ballot access and refuse to accept any EC votes he might get.

          And, barring some major revelation or substantial new cause for action, he is almost certain to be acquitted. McConnell might be able to survive, as he is in a VERY safe district, and doesn’t face the voters again until 2026. But there are enough Senators who would be committing political suicide by voting to convict that conviction is extremely unlikely.

          I would say it’s actually more likely that McConnell ends up a back bencher. Look at what is going on over in the House with Liz Cheney. But still not terrifically likely, because the Republican Senators trend more left-wing than the Republican House members, and were always more hostile to Trump.

          Still, look for a leadership challenge in the near future.

  16. I’m hoping we have an act of Islamic terror soon. Serves Americans right for putting this man in office who is immediately restoring “refugees” and “Muslim travel.”

    1. As a general rule, healthy people don’t wish for bad things on other people for disagreeing with them. After all, best-case scenario is nothing happens and you continue to stew in rage.

      Worst-case is something bad happens, and you’re too busy grieving the loss of your own family to say, “I told you so.”

      1. Being a liberal is not about disagreeing. It’s about supporting treason and poison.

        1. Well, I certainly support trees and poison. It’s how I do my gardening!

          1. Don’t be a fool. I’m hoping that the U.S. collapses sooner rather than later, so that real Americans can begin rebuilding

            1. I’m very foolish, given that I generally am against the idea of societal collapse.

              Not just for the Netflix, and the power grid, but the plumbing, man.

              THE INDOOR PLUMBING! Seriously, if God wanted us to camp, she wouldn’t have invented hotels.

              1. I want it to collapse because collapses usually usher in nationalistic and ethic divisions, which we so desperately need.

                1. I don’t think we need that- just based on your posts, I’d say that there is a clear divide between those with ethics, and those without ethics.

                  Don’t even need a collapse! Plus, I get to keep my hot water and cold beer. I tell ya, you don’t realize how important a hot shower and cold brew is until you’re like, “Sure, that two-week camping trip sounds like a swell idea!”

  17. Should be ethnic.

  18. Another silly post arguing that a political vote is governed in any way by what the “law” is or is not.

    How any more of these are we getting before the acquittal?

    1. That depends on how many more creative defenses of Trump Josh Blackman comes up with. (Which, I assume, is only limited by time. So I guess it depends on how long it takes until the Senate finishes its trial.)

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