The Volokh Conspiracy
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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.
