Defining a Theory of "Public" and "Private" Offenses for Impeachment
[This post was co-authored by Josh Blackman and Seth Barrett Tillman]
The Constitution enumerates three categories of offenses that warrant impeachment: "Treason," "Bribery" and "other high Crimes and Misdemeanors." During President Trump's first impeachment trial, his counsel took the position that only established crimes—such as those codified in the U.S. Code—could be "high Crimes and Misdemeanors" for purposes of the impeachment process. We disagreed. At the time, we did not have the occasion to explain in what circumstances impeachment could be premised on allegations other than established crimes, such as an "abuse of power."
The situation is now different. President Trump's second impeachment has reopened that question. And here, we will sketch an answer to that question. We approach this question with some caution. The original meaning of the phrase "high Crimes and Misdemeanors" in the Constitution is of uncertain scope. And the materials we have from the Philadelphia Convention, the state conventions, and the public ratification debates do not provide clear answers to the precise question we face today. Likewise, past impeachments provide inconclusive, and at times, conflicting precedents. Our writings here should be viewed in the same light as our prior writings on the First Amendment: Senators, acting in good faith, could come to conclusions which diverge from our own. We put these views out to start a conversation, not to authoritatively settle one.
Some commentators may believe that the phrase "high Crimes and Misdemeanors" in the Constitution had no fixed meaning circa 1788. So, they would contend, that phrase extends to whatever allegations a majority of the House and 2/3 of the Senate choose to act upon. For these commentators, this phrase assigns to the House and Senate an unlimited discretion that is akin to a parliamentary vote of no confidence, though, administered through a Senate supermajority. Proponents of this view have not offered any systematic or reasoned basis in support of this position. And we reject this view for the reasons discussed below.
I. Distinguishing Public Offenses and Private Offenses: An Introduction.
Historically, the phrase "high Crimes and Misdemeanors" in the Constitution has been understood to flow from two significantly different types of purported wrongs. First, under the traditional view, there are public offenses. And second, as part of a more modern consensus understanding, there are private offenses. Some commentators believe only one of these two views is correct; others believe both views can support an impeachment charge. We take no position here: we explain both views for analytical purposes.
First, an article of impeachment can allege that a defendant committed a public offense. Here, the defendant allegedly violated the duties that flow from his public station, office, or position. These duties are akin to the equitable duties that a fiduciary owes his principals. The precise scope of these duties is not strictly tied down to positive law, such as statutes. Rather, the impeachment process based on a public offense can be based on broader established principles akin to fiduciary law.
Second, an article of impeachment can allege that a defendant committed a private offense. Here, the defendant is not charged with violating any duties that flow from his public station, office, or position. Rather, with private offenses, the impeached officer is alleged to have violated a duty that the defendant shares in common with all other citizens. Such wrongs are defined by established positive law, such as statutes. In the impeachment process where a private offense is charged, the broader principles of established fiduciary law are not relevant. Why? Because the charged officeholder was not acting in his role as a fiduciary or officeholder. He did not use confidential information that came to his attention as a result of his public station. Nor did the charged officeholder use government property or personnel. And the charged officeholder did not use powers that were his to administer by virtue of holding his public station, office, or position. In such cases, we think the impeachment proceedings should align with the same body of substantive law that all other citizens face. Specifically, the charged officer should be able to rely on the full body of established substantive law. And that law includes the elements of the offense, its mens rea, and defenses available to otherwise similarly situated non-officeholders. The category of private offenses includes federal felonies. We assume most such felonies are of sufficient gravity to amount to a "high Crime and Misdemeanor," but we acknowledge the possibility that some felonies might fall short of that standard.
II. The House's and Senate's Law-making Role: Public and Private Offenses.
When a person assumes an office, he accepts certain fiduciary-like duties. And under the Constitution, certain officeholders can be impeached for violating those duties. These violations are public offenses. The House and Senate have some flexibility or leeway in defining "fiduciary" violations, just as courts with equitable jurisdiction have when adjudicating fiduciary duty claims. In the impeachment process, when adjudicating such public offenses, the House and Senate have something akin to a law-making role, though that role is not unlimited.
Alternatively, an officeholder, as a citizen, is still subject to all other laws. If he violates those other laws, he can be tried in a court of competent jurisdiction. And the officeholder can be impeached by the House and tried by the Senate for that same conduct. (Again, we table the question of whether the legal violation associated with a private offense is of sufficient gravity to warrant impeachment proceedings.) But if the House seeks to impeach the officeholder for such a private offense—the same sort of offense that all other citizens are subject to—the House and Senate should rely on the established law for that private offense. We suggest that the only basis to impeach an officeholder for a private offense is the established law that governs that private offense. And that established law includes the offense's elements, its mens rea, and defenses available to otherwise similarly situated non-officeholders. The House should not be able make up standards for private offenses, ex post and ad hoc. And if there is no established law governing that purported wrong, then there is no private offense. When impeaching for private offenses, the House and Senate generally cannot engage in creative law-making. But we do recognize one important exception to this general rule. Federal statutes that establish an offense were intended to guide adjudications in Article III or other courts. But these statutes were not designed for adjudications in the impeachment process. As a result, the House's and Senate's law-making power extends to issues governing procedure. And those bodies can use this power to modify procedure (widely understood) to accommodate a House prosecution and a Senate forum. But this power would not extend to the substantive law defining the wrong.
In short, the House and Senate have a limited law-making role in impeachment proceedings. And we will explain our view of the nature and limits of that role in greater detail below. Here we make two preliminary points. First, an impeachment based on speech-related wrongs poses peculiar challenges. With a conduct-based wrong, Congress can assess the acts committed. But with a speech-related wrong, as a general matter, Congress must make a judgment about what consequences or results the speaker intended with his speech. In this regard, speech-related wrongs bear similarities to inchoate crimes in criminal proceedings. In such situations, we look to evidence as to what the defendant said or wrote, in order to determine whether the speaker had the requisite intent to violate the law and to bring about proscribed consequences.
The 1799 Blount proceedings, our nation's first impeachment, was based on such a speech-related wrong. Moreover, the primary evidence against Blount was a letter, purportedly signed by Blount. In this letter, Blount sought to promote a plan to have Britain seize Spanish territory in the New World. Blount's motive seems to have been in connection with adventure and commercial gain. Blount did not hold himself out as a representative of the United States government. As a result, Logan Act principles and policies were not at issue. The House ultimately adopted five articles of impeachment against Blount. Each article of impeachment made allegations that Blount's conduct was criminal, or involved conspiracies, or violated the laws of the United States. In Blount, a case charging a speech-related wrong, the House did not vote to impeach absent allegations that the defendant violated established law. (We do not opine whether the House was correct in alleging that Blount violated any actual laws of the United States.)
We raise a second point concerning the House's and Senate's law-making roles in impeachment proceedings. The Constitution assigned the House the power of impeachment and assigned the Senate the power to try impeachments. The Constitution did not assign these roles to each body in order to create a law-making role in either one for use during such proceedings. Each house was assigned its role in the impeachment process for other reasons—unrelated to "legislation" or law-making broadly understood. For example, in Federalist No. 65, Hamilton considered potential venues other than the Senate to conduct an impeachment trial. Ultimately, however, Hamilton defended the Constitution's choice of the Senate. Hamilton rooted his argument in a variety of motives and purposes. He relied on history and precedents drawn from Britain and the states, costs or economy, as well as pragmatism. In explaining why the Senate was assigned the role of trying impeachments, Hamilton-Publius stated:
"Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?"
Hamilton expressed a bona fide concern: the regular courts, including the Supreme Court, might be poorly positioned to try an impeachment. They could lack the "confidence" to remove elected officials or great officers of state. Moreover, they might be unable to effectuate the removal of those officeholders. We see no evidence that the House and Senate were assigned their roles in the impeachment process in order to facilitate their creating novel legal theories on which to impeach officeholders. These structural arguments further illustrate why the House should rely on established legal standards.
III. The Hamilton-Story Duty-Centric Model of Impeachment.
The traditional view is that a President or other officeholder, in certain circumstances, may be impeached for a public offense: an offense that is not grounded in established law. But in the impeachment process, public offenses should be treated differently from private offenses. Here, we sketch out our position in greater detail regarding how to distinguish public offenses from private offenses. Our position begins with Alexander Hamilton's famous discussion of impeachment in Federalist No. 65. Publius explained:
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. (emphasis added).
Joseph Story described the impeachment process in a similar fashion. In his celebrated Commentaries on the Constitution, Story wrote that "[t]he jurisdiction [in impeachment] is to be exercised over offenses which are committed by public men in violation of their public trust and duties."
Hamilton and Story did not suggest that every wrong by a "public m[a]n" falls within the "jurisdiction" of the impeachment power. Rather, the phrase "high Crimes and Misdemeanors" in the Impeachment Clause has some outer bounds. Contrary to what Gerry Ford suggested, the House does not have carte blanche to define any wrong as a "high Crime and Misdemeanor." Rather, according to Hamilton, this phrase embraces those wrongs by officeholders that "violat[e] . . . some public trust." Or, as Story put it, wrongs that violate "their . . . duties." The Hamilton-Story view is the canonical restatement of impeachment. Some early commentators expressly contended that the whole scope of "high Crimes and Misdemeanors" was limited to offenses based on the violation of duties arising in connection with the defendant's public station, office, or position. For example, this duty-centric view was adopted by William Rawle, who wrote one of the most prominent antebellum commentaries on the Constitution. In 1825, Rawle, the former U.S. District Attorney for Pennsylvania wrote "In general those offences which may be committed equally by a private person as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office, except the two expressly mentioned [ie, bribery and treason], are left to the ordinary course of judicial proceeding …."
Nevertheless, the modern consensus view is that Hamilton's list was under-inclusive. That is, the bounds of "high Crimes and Misdemeanors" are broader than the Hamilton-Story duty-centric view. Here, we assume the modern consensus view is correct: there are other "high Crimes and Misdemeanors" that do not "violate[e] . . . some public trust" or an officeholder's "duties" that can still support an article of impeachment. The impeachment inquiry thus raises two challenging interpretive issues. First, what type of public conduct violates "some public trust"? Second, what type of private conduct—that is, conduct that does not violate "some public trust"—is still sufficient to support an impeachment?
The House may argue that any wrong by the President violates the "public trust." In other words, a violation of the "public trust" is whatever a House majority says it is. Or, the House may argue that any legal violation, even if unconnected to the duties of the presidency, violates the "public trust." Hamilton referred to a "violation of some public trust." The modifier "some" suggests that the term "public trust" has some particularized limits. What are those limits? Likewise, Story wrote that impeachment extends to a "violation [of] duties" by public men. Not everything is a duty. What are those duties?
Let's consider a hypothetical. During a holiday, President Burr stays at Burr Tower, his private residence in New York City. After he finishes the day's public business, he walks onto Fifth Avenue carrying his privately-owned pistol, and shoots a random person with the intent to kill. Under the modern consensus view, Burr could be impeached and removed from office for murder. Yet, this offense does not squarely fit within the Hamilton-Story duty-centric understanding of an impeachable offense. Does this egregious offense amount to an "abuse or violation of some public trust"? Is there a violation of a duty flowing from his holding the presidency? You may be inclined to say "Yes!" But the term "public trust," according to some scholars, reflects the law of fiduciary duty law. Generally, a person can breach that trust through the abuse of his office—or, to use the language from Trump's first impeachment, an "abuse of power." We think an officeholder abuses "some public trust" if he uses government information, property, personnel, or powers that are entrusted to him by virtue of his public station, office, or position. But in our hypothetical, Burr did not use the powers of his office to commit murder. He did not use any government resources. He was staying in his private residence, and used a privately-owned weapon. Burr's misconduct does not relate to his specific duties as President. Rather, Burr breached the duties that he shared in common with all other citizens. On these facts, he did not violate "some public trust" or the specific "duties" connected to his position. Burr's murdering a person, in this way, would be a private offense, and not a public offense. In this hypothetical, an impeachment based on murder would not fit the Hamilton-Story duty-centric model.
Now, let's change the hypothetical. Again, President Burr stays at Burr Tower in New York City during a holiday. After he finishes the day's public business, he walks onto Fifth Avenue. There, he tells his gathered constituents that the mayoral election was rigged. Burr encourages his supporters to "peacefully and patriotically" walk down Broadway to City Hall to protest the Mayor's "corrupt" administration. His supporters, and others who did not hear the speech, make the four-mile walk. Other people were already waiting at City Hall before Burr even made his speech. Then, a group of people violently break into city hall and kill the Mayor. In this hypothetical, Did Burr use the powers of his office to commit his offense? Or, is this offense closer to the murder on Fifth Avenue? We do not think the identity of the victim—a random person or the mayor—changes the analysis. Nor do we think the motive for the killing changes the analysis—for example, if Burr gave the speech for a partisan end. His speech did not violate any duty that flows from his office. He did not run afoul of "some public trust." In this hypothetical, like the prior Fifth Avenue hypothetical, Burr's speech to his constituents would be, at most, a potential private offense, and not a public offense.
We recognize that critics may counter that any wrongdoing by the President, whether public or private, violates the "public trust," in light of the President's oath of office. That is, the President must always comport himself according to his oath of office. But that inquiry is circular. What exactly does the oath of office require? Does every private wrong run afoul of that oath? Adultery, where that offense is proscribed by law? Jaywalking? Or, does Congress get to define the contours of that oath? We do not think the President has to hold himself to the exacting standards as determined by a majority of the House of Representatives ex post and ad hoc. And the concept of the public trust is linked to the duties that flow from the President's office. Egregious conduct, such as murder, may still be impeachable. But if the President does not violate the duties that flow from his office, he cannot be said to violate his oath of office or the public trust. For such egregious crimes, he would commit a private offense, and not a public offense.
Other critics may make a related argument: everything the President does is a public act. We agree with Professor Daphna Renan that the President has "two bodies": a public body and a personal body. (And in some cases, he has three bodies; see pp. 7-10.) There is a distinction between the President's private acts, and those public acts performed with the powers of his office. When Hamilton speaks of "some public trust," we think he was referring to the latter concept. And Story's use of "duty" likewise refers to the duties attached to his position as President, not the generalized duties to obey the law, which he shares in common with all other citizens.
Under the modern consensus view, the President can be impeached for public and private offenses. When Congress seeks to impeach the president for violating "some public trust," the articles of impeachment can rely on something akin to the established body of fiduciary law. And that law is more flexible than substantive federal criminal law. Fiduciary law is highly fact-dependent, and its causes of action and defenses were judge-made in their inception and, largely, remain judge-made in terms of their modern development. These public offenses concern breaches of the specific duties of officeholders. For public offenses, the House and Senate have some significant latitude in characterizing the applicable law when impeaching officeholders.
A different standard should apply when a public official commits some impeachable wrong that is not a violation of the "public trust." With a private offense, the officeholder does not transgress any of the specific duties flowing from the position he holds. In those circumstances, an article of impeachment for a private offense should make reference to established law. When the President commits a private wrong in his personal "body," we think the impeachment proceedings should follow the same body of substantive law, including the elements, mens rea, and defenses, that would govern proceedings for other similarly situated citizens. We think this body of substantive law should apply, even if it is usually applied and because it is usually applied to other citizens tried in a judicial forum. Indeed, we are hard pressed to rationalize any sort of impeachment for a private "wrong" that lacks a basis in established law. And, accordingly, we cannot even characterize such a wrong as an "offense."
Finally, some commentators may argue that Congress can make law when identifying impeachable wrongs, ex post and ad hoc. In other words, that the House and Senate can identify impeachable wrongs without regard to the President's specific duties and without regard to established law. We think the substantial defense that this position would require has yet to be made.
IV. Private Offenses in the Johnson and Clinton Impeachments.
The Johnson impeachment helps to illustrate this dichotomy between public and private offenses. There were eleven articles lodged against Johnson. Several of them concerned Johnson's dismissal of Secretary of War Edwin Stanton. We think these purported Stanton-related offenses would fit within the Hamilton-Story duty-centric model. In other words, the wrongs alleged by the House were violations of "some public trust" or violations of "duties" connected to the President's position. Specifically, Article 1 charged Johnson was "unmindful" of his oath of office, and he failed to take care that the laws were faithfully executed, by intentionally violating the Tenure of Office Act. There was no positive law that defined the consequences of the President intentionally disregarding a statute. The Tenure of Office Act merely established a legal obligation on the President; it did not purport to define the remedy for breaching that obligation. (We leave aside the constitutionality of the statute.) More importantly, the duty imposed by the Act on the President was not one he shared with other citizens. That duty extended only to the President. Thus, the allegation in Article 1 was fiduciary in nature. And under traditional fiduciary law, it is a violation of a fiduciary's duty of loyalty to intentionally violate the duties associated with his position. The longstanding body of established fiduciary law afforded the House some latitude to craft this fact-specific article of impeachment.
However, Article 10 differed from Article 1. The former concerned speeches in which Johnson criticized Congress. For these speeches, Johnson was speaking to his constituents, without using government information or property. These speeches were not made pursuant to any government edict, program, or statutory duty. Johnson did not violate any duties that flowed from his office. Here, Johnson was merely communicating with his constituents. The President, an elected official and party leader, is expected to give such political speeches. And these speeches do not flow from the President's duties. We think the House erred by impeaching Johnson on these grounds. The Senate did not convict on this basis, and we think the Senate acted correctly. If the speeches did not violate "some public trust" or the specific "duties" associated with the presidency, then the impeachment process must be based on established law. As such, we think that Johnson should have been afforded the widest latitude of established free speech protections—the same protections that any other similarly situated citizen would benefit from.
The Clinton impeachment also illustrates this dichotomy. Bill Clinton had extramarital relations. And he committed those acts on, and with government property. Moreover, he arguably used the prestige and power of his office to form that relationship. But we do not think that conduct, assuming it was consensual, violated "some public trust" or the specific "duties" associated with the presidency, as the law stood at that time. It was—as we were reminded for years—a "personal" act that did not reflect on Clinton's office. The President has a right to have a private life, even while living in the White House. When he takes the oath of office, he does not take an oath to be scrupulously moral as a majority of a subsequently elected House may determine morality. Likewise, where a President is charged with perjury, he should be burdened with and benefit from the same substantive law of perjury—that is, its elements, mens rea, and defenses—that any other defendant charged with perjury would face. The fact that a President is impeached and tried in a different forum from other citizens is not a reason to vary the substantive law of perjury. In an impeachment proceeding, the House and Senate should not be empowered to make new law, that is, perjury-lite law, for a single occasion and a single defendant.
This history brings us forward to President Trump's first impeachment. In 2019, Trump was impeached based on a telephone call he made to the President of the Ukraine. That call was made pursuant to Trump's official duties as President. He was discussing foreign relations, a core power of the presidency. The call was made using government property and information. Other government officers listened to the call. In short, that conduct implicated the "public trust" and Trump's "duties" as President. To the extent there was an impeachable offense, it can be fairly characterized as a public, and not private offense. (We argued there was no merit to the charge, because the conduct did amount to impeachable bribery.)
V. The Draft and Final Article of Impeachment: An Analysis.
Now, let's turn to the text of the sole article of impeachment adopted in January 2020, titled "Incitement of Insurrection." The House did not allege that Trump committed "Bribery" or "Treason." (Though, some commentators urged the House to charge Trump with the latter offense.) Therefore, it would seem to follow that "Incitement of Insurrection" was intended to be a "high Crime and Misdemeanor." Is "incitement" an established crime? Of course. 18 U.S.C. § 2101 makes it a crime to "incite a riot." Likewise, 18 U.S.C. § 2283 makes it a crime to "incite . . . any rebellion or insurrection against the authority of the United States." There are other potentially relevant statutes. Yet, the article of impeachment does not cite these statutes, or any others, to define the elements of "Incitement of Insurrection." Rather, as best as we can tell, the House fashioned a novel standard out of whole cloth. Indeed, the House amended its early draft article of impeachment to eliminate any reference to established law about incitement.
On January 8, Rep. David Cicilline of Rhode Island circulated a draft version of the article. It included this passage:
On January 6, 2021, pursuant to the Twelfth Amendment of the United States Constitution, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. Shortly before the Joint Session commenced, President Trump addressed a crowd of his political supporters nearby. There, he reiterated false claims that "we won this election, and we won it by a landslide'. He also willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol. Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice President, interfered with the Joint Session's solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.
This passage includes five relevant components. First, the passage focuses solely on Trump's conduct on January 6, "[s]hortly before the joint session." The draft article did not look at Trump's actions in the months and weeks leading up to January 6. Why was this discussion so time-limited? Because second, the drafters invoked an established legal standard that required imminence. Here, the drafters adopted something close to the standard announced in Brandenburg v. Ohio: that Trump "willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol." This language does not track Brandenburg precisely, but it is fairly close. Brandenburg held that the government can punish speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The draft article focused on conduct from January 6 because that date would be the relevant time period for Brandenburg's "imminence" analysis. Third, by invoking Brandenburg, the draft article afforded President Trump an important defense. He could argue that his statements did not "encourage . . . imminent lawless action." Fourth, this established law provides the burdens of proof the managers must meet. And, accordingly, the Senators can determine whether the managers met their burden of proof. Fifth, and most importantly, the choice to reference established law supports the legitimacy of the charge. Here, the drafters used established law, which was developed by the courts for future cases unknown. The drafters did not adopt a novel legal standard developed uniquely for the specific defendant and the specific case before Congress. This standard was tethered to precedent and established law. Such an approach was not subjected to manipulation by the President's opponents.
In our January 8 blog post, we recognized this potential defense based on a lack of imminence. At the time, we did not know what precise language the House would adopt, but we had seen Rep. Cicilline's draft article. If that draft had been adopted, the abstract legal issue of whether the First Amendment applies to the impeachment process really would not have mattered. Had the draft article been adopted with a standard akin to the Brandenburg test, the House would have effectively imported that First Amendment standard into the impeachment process. (Indeed, the House managers may decide, at trial or in post-trial briefing, to import the First Amendment standards into the impeachment process. This post does not address the recently-filed House brief.) Again, the House's draft article made use of established First Amendment law.
However, the language from the draft article would change. The text of the adopted article of impeachment provides:
On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that "we won this election, and we won it by a landslide". He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: "if you don't fight like hell you're not going to have a country anymore". Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session's solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.
The five particularly significant components from the draft article were altered. First, the passage was no longer limited to the events of January 6. Rather, the article referred to "false statements" made in the "months preceding the Joint Session." This first change ineluctably led to the second change: the reference to "imminent" lawless action was removed. The adopted article of impeachment no longer tracked Brandenburg. Indeed, it appears the House created a novel standard out of whole cloth. The House's novel standard is that Trump "willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol." The phrase "imminent lawless action" was shortened to just "lawless action." There was no longer any temporal requirement. This statement is not the Brandenburg standard; it is not even comparable to the Brandenburg standard. As far as we know, the proponents of this standard have not put forward any arguments or precedents explaining establishing why the House's legal test should be used.
Third, by eliminating any reference to established law, the House eliminated an important defense that Trump could raise. Even if Trump could show that there was no imminence, he could still be found guilty under the announced legal standard. On its face, the House's revised test made it easier to convict Trump. The House accomplished this goal by eliminating any reference to established law. Fourth, because this standard is novel, the managers will not be able to rely on caselaw that explains how they must meet their burden. Likewise Senators will lack judicial guidance to determine whether the managers have met that burden. Fifth, the adopted article could no longer rely on the legitimacy afforded through an established legal standard. The House adopted a novel standard that was developed uniquely for the present facts, untethered to precedent and established law. Such an approach always risks manipulation by those supporting impeachment. The President's attorneys should raise this argument.
We see five normative advantages to the first draft, which tracked the Brandenburg standard. And these advantages inure to the benefit of Trump, the House, the Senate, and the entire process First, under the Brandenburg standard, Trump, and all officeholders, are on fair notice of the boundaries of what conduct could give rise to impeachment. Had Trump, or other similarly situated persons, asked counsel for advice, they would have been able to explain where the courts have drawn this well-known line. In the criminal context, a defendant will sometimes be subjected to a new criminal statute that had never been adjudicated. Cases of first impression sometimes present difficult interpretive questions. But that novelty does not render the prosecution unfair or unconstitutional. However, with Trump, the offense was crafted after his conduct. In effect, the House is defining impeachable private "offenses" after the fact, without reference to established law. If this view is correct, then there are no meaningful limits on the House's impeachment power. In effect, the Constitution's "high Crimes and Misdemeanors" language amounts to what any House majority and 2/3 of the Senate choose to act upon. To put it another way, the sole article of impeachment against President Trump reflects an ex post and ad hoc creation—it is a wholly novel private "wrong." We refer to this conduct as a private "wrong," rather than a private "offense," because the charge does not appear to be founded on any established law.
Second, there is a related normative advantage from the perspective of members of Congress. Had the House adopted the Brandenburg standard, members of both houses could determine whether Trump's speech is protected under applicable law.
Third, with the draft article, the House Managers would have had a basis in established law to facilitate meeting their burden of proof. They would have to plead all of the elements of incitement in light of Brandenburg, as they would in a criminal trial. And, the President's counsel could assert that the managers failed to meet that burden, and could raise defenses available under established law.
Fourth, after the trial concluded, Senators could assess the Manager's arguments, the President's defenses, in light of the established law. By rejecting Brandenburg, the House and Senate members are essentially flying blind.
Fifth, by adopting an established body of law, the House managers would have immunized themselves against charges of partisanship, politicization, and gamesmanship. The House was simply following the law that everyone had long understood—including the House's initial draftspersons. No new precedent would be set. Rather, the Senate would be following settled practice. Of course, the House rejected the standard announced by the Supreme Court. And the decision to create a novel standard led to an unintended consequence: the President's defenders now can argue that the wrong legal standard was selected. Thus, even if the facts alleged are true, the President should not be convicted. The President's defenders may choose to acquit so as not to establish a precedent that unduly burdens the free speech rights of political officeholders and future presidents. And Senators can charge that the House engaged in unfair partisan gamesmanship: they invented a novel standard to convict the President. This argument may become more attractive to some senators because Trump is out-of-office. Even if it is believed that Trump was a wrongdoer, he does not pose a current threat. In this case, the risk of a bad precedent may weigh more heavily with the Senators.
Given the facts we know today, Trump's January 6 speech at the Ellipse is better characterized as a private offense. On January 6, President Trump spoke to his constituents at a rally held at the White House Ellipse. But the rally was not actually on White House property. Despite its name, the Ellipse is outside White House grounds. The rally was organized by private parties. Trump was not speaking there pursuant to any duty of his office. This speech was a political speech, much like speeches he gave at many of his other rallies. Here, we think Trump was speaking with his "personal" body.
Based on our reading of Hamilton and Story, Trump's speech at the Ellipse would not be a breach of "some public trust" or the specific "duties" that flow from the presidency. Trump's conduct could still give rise to an article of impeachment. But in our view, that impeachment, for a private offense, should be premised on established law. And, that law is the Brandenburg standard, which had influenced the House's initial draft. The House's draft article of impeachment afforded Trump the opportunity to raise Brandenburg as a defense. But the adopted draft eliminated that reference to established law. With respect to Trump's speech delivered at the Ellipse, the article for incitement of insurrection runs afoul of our position for what constitutes a "high Crime and Misdemeanor."
We take no position on whether Trump's purported conduct beyond his January 6 speech at the Ellipse may amount to a public or private offense.
[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]