What Do "Many" of the 140+ Law Professors Think About the First Amendment and Impeachment?

This letter is not unanimous. Indeed, the signatories are quite fractured about impeachment, the First Amendment, and Brandenburg

On Friday, nearly 150 law professors signed a statement about President Trump's First Amendment defenses. The new statement begins:

At that trial, President Trump's lawyers plan to defend his actions on January 6 by arguing that the First Amendment shields him from conviction. We, the undersigned constitutional law scholars, write to explain why this is wrong. The First Amendment is no bar to the Senate convicting former President Trump and disqualifying him from holding future office. Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution's text, history, and context, we all agree that any First Amendment defense raised by President Trump's attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.

The introductory section strikes a chord of unanimity. But it isn't clear that all of the signatories agree on a single rationale of why a First Amendment defense would be
"frivolous."

Roman numeral I is titled:

"The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump."

I would think that all of the signatories agree with this statement. But they do not. The section begins:

"Many of us believe that the First Amendment simply does not apply here." 

Many? How many? Is many "most"? A majority? A plurality? The letter does not say. Presumably, some of the signatories agree with me and my colleague Seth Barrett Tillman that the First Amendment does apply--or at least has some relevance--to impeachment proceedings. There very well may be a consensus, but there are dissenters to this critical question.

Roman numeral II is titled:

"Even if the First Amendment applies in impeachment proceedings, it does not prohibit conviction and disqualification for violating the President's Oath of Office."

Again, I would think that all of the signatories agree with this statement. But they do not. The section begins:

Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified . . . .

Again, "Many." Presumably, some of the signatories do not agree with this statement. And the inclusion of "regardless of whether" makes it even less clear what "Many" professors are agreeing to. Some professors may think the First Amendment applies to impeachment proceedings. Some professors do not. Some professors think that the First Amendment does not apply, and Trump can be convicted for some reason. And some professors think that the First Amendment applies, and Trump cannot be convicted. But the full sentence makes it even less clear what "many" professors are agreeing to. Here is the full excerpt: 

Many of us believe that, regardless of whether the First Amendment does or does not apply to impeachment, President Trump can be convicted and disqualified because he is accused of violating his oath through an "extraordinary, unprecedented repudiation of the President's duties to protect the government" through his "further acts and omissions after he incited the crowd to attack the Capitol"—namely, by allegedly watching the mob storm Congress on television and "not immediately taking action to protect Congress and the Capitol."

There are two alleged courses of conduct. First, the January 6 speech. And second, watching the mob and failing to take immediate action. The letter explains:

While reasonable people can disagree as to the scope of free speech rights in specific contexts (such as the scope of the government's power to limit its own employees' public expression), no reasonable scholar or jurist could conclude that President Trump had a First Amendment right to [1] incite a violent attack on the seat of the legislative branch, or [2] then to sit back and watch on television as Congress was terrorized and the Capitol sacked.

I don't believe Trump's lawyers have defended this latter alleged course of conduct on First Amendment grounds. There are certainly defenses to be raised, but I don't think the lawyers would argue the President has a First Amendment right to watch TV and fail to dispatch troops. How many of the signatories think the latter course of conduct is impeachable? And how many of the signatories think the former course of conduct is impeachable? And how many think both courses are impeachable? We do not know.

Roman numeral III is titled:

"The President's speech and conduct around January 6 constitute unprotected incitement."

Does everyone agree with that statement? No. The section begins:

Even if the principles of First Amendment law are applicable in the impeachment context (and many of us believe they are not), many of us believe there is an extraordinarily strong argument that the Supreme Court's standards, articulated in Brandenburg v. Ohio, for when the government may criminally punish an individual's deliberate incitement of others to engage in imminent lawless acts are satisfied in this case.

This sentence is even tougher to follow. Many professors think the First Amendment is not relevant. But some do. And many professors think that Trump's conduct satisfies the high bar set by Brandenburg. But not all professor reach that conclusion. So we are left to believe that some of the signatories think that the First Amendment applies and the Brandenburg test is not satisfied. In other words, Trump's speech would be protected under the Brandenburg standard. These dissenters would agree with me and Tillman, at least in part. But they may think that the President's other conduct after the speech is impeachable. And there is no First Amendment defense to that other conduct. The letter states:

In this context and under the circumstances, many of us believe there is a powerful case that even under the Supreme Court's narrow standards for when speech inciting violence is not constitutionally protected, President Trump's words and conduct were unprotected. His words and conduct were, in the words of the Brandenburg case, "directed to inciting or producing imminent lawless action and . . . likely to . . . produce such action."

By allowing such a wide range of views, the drafters of this letter have revealed there is some dissent on this issue. Yet the conclusion dismisses any possible dissent:

The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement.

Do all the signatories agree with this statement? Or only "many"?

***

I have long been critical of these sorts of group statements. Law professors tend to have very nuanced views. And letters prepared for 100+ professors cannot adequately reflect that nuance. This letter tried to accomplish some nuance by referring to the views of "many" professors. But in doing so, the letter fractured so badly that I'm not even sure what precisely a majority agreed upon. This statement reads like a splintered plurality decision from the Supreme Court where there is a majority that agrees on a single disposition, but there is no single rationale. Alas, this nuance will be lost in public discourse. What matters is that 140 law professors submitted a letter arguing against Trump's First Amendment defenses.

The New York Times offered this summary:

Claims by former President Donald J. Trump's lawyers that his conduct around the Jan. 6 Capitol riot is shielded by the First Amendment are "legally frivolous" and should do nothing to stop the Senate from convicting him in his impeachment trial, 144 leading First Amendment lawyers and constitutional scholars from across the political spectrum wrote in a letter circulated on Friday.

Which argument, exactly, is "legally frivolous"? I do not know.

Two of my co-bloggers, Sasha Volokh and Daivd Post, signed the statement. But other co-bloggers, who have written about the First Amendment and January 6--Jonathan Adler, Ilya Somin, Keith Whittington, and Eugene Volokh--did not sign. Several of these professors signed another letter about late impeachments. 

Comments

[Cal Cetín]

"a cord of unanimity"

Is this the equivalent of a Freudian slip?

[Michael P]

As in, anyone who dissents will be taken behind the woodpile (one cord of unanimity) and beaten?

[wreckinball]

This impeachment is a total farce.

[Dr. Ed 2]

And law professors are discrediting their profession by commenting on what is a political lynching.

[LawTalkingGuy]

You have no clue what a lynching is, do you?

[Michael P]

Non-judicial punishments, inflicted by an irate mob driven by hate and fear, depriving the target of any semblance of fair process? That sounds exactly right, down to the inherent politics of it.

[LawTalkingGuy]

Well it isn’t exactly non-judicial since the Constitution makes the procedure one where the legislative branch exercises a type of judicial power. The respondent gets to have lawyers to appear in his defense and is probably going to win because of the Senate math. The respondent gets plenty of time to use political pressure to sway the Senate. And insofar as the House is a public body, it’s far more transparent and open than a secret grand jury indictment let alone the dynamics that result in a lynching.

Also you’re completely missing the violence and torture. That’s kind of a big point.

But other than that, great job.

[bernard11]

Indeed, he can call witnesses and even appear himself, though Trump is understandably terrified of speaking under oath.

There is nothing unfair here, and if there were it still wouldn't constitute a lynching. In fact, the comparison is odious.

[steeltown lad]

The senate has afforded Trump in this instance the right to counsel and even the right to appear. Are you under the misapprehension that the Senate had to afford him.these rights? The Senate can conduct this trial any way 50% plus one of its members dictate. The entirety of Anglo-Saxon jurisprudence starting with Magna Carta has no binding effect on the Senate rules in an impeachment “trial”. I suppose the Senate could haul Trump in and hang him until he confessed.

[Don Nico]

Exactly, all Star Chambers are entitled to work in that way. Unfortunately every step of the House's action underscored the partisan nature of this proceeding, regardless of how odious DJT's behavior might have been.
You're correct that the Senate did not have to accord DJT any of your cited opportunities. The Senate may say it is conducting a "trial", but a Senate impeachment proceeding is and has been in every case a Star Chamber with arbitrary rules.

[bernard11]

Regardless of whether the Senate was required to provide Trump these rights, they did so.

That means the complaint about lack of fair process is, in the Trump impeachment, utterly baseless. And of course the "lynching" claim is despicable.

[steeltown lad]

Well, I’m certain that in a usual trial under our Constitutional norms and the Bill of Rights, Trump would be afforded a great many rights and privileges that he won’t be getting under his impeachment “trial”. Including, to pick one at random, the right not to have the presiding officer not also be a juror voting on his guilt...and, let’s be fair, Leary is certain to vote to convict. And there are many other examples. So, just as we’ve all come aro7nd to accept that, for the House, “high crimes and misdemeanors” means any action or inaction whatsoever that the House wishes to impeach, in the Senate the conditions of the trial are any conditions that the Democratic majority determines, unmoored from any traditional notions of jurisprudence

[bernard11]

The Senate is certainly entitled to make rules, and I suppose they might make unfair rules. Given that this is not a criminal trial it's not clear to me what serious deprivation of rights you are concerned about.

As to Leahy, well, the President Pro Tem has historically presided over non-Presidential impeachments, so this is not an innovation. Nor is it clear that the presiding officer exercises the same degree of control as a judge in a criminal trial.

in the Senate the conditions of the trial are any conditions that the Democratic majority determines, unmoored from any traditional notions of jurisprudence

"Unmoored" is simply not accurate. Plus as a technical point, the Democrats are making the rules because they are in the majority, just as the Republicans made the rules - no prosecution witnesses, talk about unmoored - last time around.

[steeltown lad]

“Leahy”

[MK Ultra]

Tim Leary presiding would certainly have made the political posturing show more entertaining.

[Dr. Ed 2]

"I suppose the Senate could haul Trump in and hang him until he confessed."

Eighth Amendment be damned....

[Michael P]

You are merely arguing that we should not harshly judge the perpetrators of a failed lynching.

Violence and torture is much less of the objective of any lynching than permanent punishment and making a very public statement about what will happen to the next person to get uppity.

[LawTalkingGuy]

No you are merely making an offensive comparison to make Trump look like a victim of something horrible. I don’t know how anyone with any sense could read the details of historical lynchings and be like: “this is an apt comparison.”I mean have you ever seen the open casket photo of Emmet Till? Get back to me when the Senate mutilates his face, and dumps him in the river with a fan blade tied around his neck using barbed wire.

[Dr. Ed 2]

I believe that Dr. King's fatal wound was concealed by the clothing that the undertaker dressed him in.

Was he any less dead???

[LawTalkingGuy]

Uh what?

[SimonP]

Like storming the Capitol, in other words.

[Dr. Ed 2]

Actually, LawTalkingGuy, I do.
My family were Loyalists and there are still laws on the books that certain members will be executed "without benefit of clergy" were they to ever return. So yes, I do.

The origins of the word aren't what I think you think they are.

HOWEVER, what would you call mob action and the basic denial of due process, including the right to counsel? Look at what has been done to the attorneys who dared defend him -- isn't there a basic concept in the law that anyone, no matter how despicable (or guilty), is entitled to an effective defense???

When this is all over, the legal profession is going to have to answer some very serious questions, starting with if it honestly believes in the "right of counsel" anymore...

[LawTalkingGuy]

Well. First of all, there is no right to counsel in civil proceedings. There never has been. If you want it, you can have it. Second, the right to counsel in criminal cases as we currently understand it is a recent invention.

And nobody “did” anything to his lawyers...other than Trump. The reason his lawyers left is because Trump is an awful client. He’s notoriously stubborn and obstinate and won’t listen to advice. He wants his attorneys to do things that will get them into trouble with the disciplinary authorities like lying to the tribunal about election fraud. And if that wasn’t enough: he’s a notorious cheapskate who doesn’t pay his bills.

Why do you think Michael Cohen was his attorney for so long? Because Trump doesn’t want an attorney he wants a fixer.

[Dr. Ed 2]

"If you want it, you can have it"

Not if you can't obtain it....

[LawTalkingGuy]

Also not for nothing, but lynchings were/are inherently political acts.

[Rev. Arthur L. Kirkland]

THE VOLOKH CONSPIRACY

This White, male, conservative
blog has operated for
37 DAYS
without gratuitous use of a
vile racial slur and for
652 DAYS
without imposing partisan,
viewpoint-driven censorship.

[Don Nico]

Give it a rest

[TwelveInchPianist]

"This White, male, conservative blog has operated for 37 DAYS without gratuitous use of a vile racial slur..."

Wow, that's pretty good. The New York Times used it less than a week ago, and they just fired their covid reporter for using it. Score one for White, male conservatives, I guess.

[Dilan Esper]

Law professors need to just stop. If 34 Senators think a defense is not frivolous, it wouldn't matter if every law professor in America disagreed with them.

[Dilan Esper]

And I especially hate the "legally frivolous" rhetoric. There is no Rule 11 here. The President's lawyers can make arguments that law professors think are frivolous, and Senators can accept them. "Legally frivolous" is not an opinion, it is a lie. Academics should not be using their positions to lie to the public.

[Noscitur a sociis]

The fact that a judge can't punish Trump's lawyers for making frivolous arguments or overrule the senate for accepting them doesn't mean that the arguments are not in fact frivolous—much less that the authors here are lying by characterizing them that way.

[Michael P]

The law professors are making an argument that is at least as frivolous as Trump's defense team. That is true whether they want to apply the usual legal definition of a frivolous argument, or a lay interpretation.

[Noscitur a sociis]

It's fine to say that these professors have reached the wrong conclusion (though you haven't exactly shown your work on that score). But Dilan Esper is criticizing them for even undertaking an analysis in the first place.

[Michael P]

What? Read the statement: "we all agree that any First Amendment defense raised by President Trump's attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office."

On their first point, to the extent that the First Amendment does not dictate the bounds of impeachment over speech, arguments in an impeachment trial are also not bounded by what is "legally" frivolous. To claim otherwise is ... frivolous, as in not supported by any reasonable extension of existing law or practice.

On their second point, they are simply saying that First Amendment inquiries are separate from other potential grounds for convicting Trump. This is probably their strongest argument, but again -- it conflates legal, judicial standards with political standards. Their straw-man argument about "no reasonable scholar or jurist" shows that they know how weak their position is.

On their third point, Trump's conduct is rather plainly beyond what the Supreme Court has ruled can be criminally punished. Some of the rioting was planned in advance; some was incited by opponents of Trump; some began before anyone at Trump's speech could have reached the Capitol. Beyond all that, exactly none of what Trump said encouraged that kind of lawless behavior. It was not even close to meeting the legal standard.

[Dilan Esper]

I am, but more specifically, I am also criticizing them for lying- i.e., by claiming that because an argument supposedly wouldn't fly in a courtroom, it is "legally frivolous" to make it in an impeachment trial. That's not true at all. The Senate can certainly declare an argument frivolous and prohibit a party from making it. But no Senate rule does so, and the whole point of the impeachment process is to allow the Senators to reach a conclusion opposite to that a court would reach. Otherwise we'd just do it in a court.

So it isn't "legally" anything. Instead of saying "we think this is a bad argument", which is the truth, they decided to put their academic credentials behind a total lie that somehow the argument VIOLATES some rule of legal practice. That it is sanctionable. That's disgusting and the signatories of this letter ought to be ashamed of themselves.

[ah....Clem]

So, if Trump's lawyers claim that "the 52nd amendment prohibits the Senate from convicting him" then it's entirely up to the Senate to determine whether to accept this or not.

And any lawyer who points out that there's no 52nd amendment is "disgusting" and engaging in actions that are "sanctionable".

Is this what you're trying to say?

[Dilan Esper]

First paragraph is correct.

Second paragraph is incorrect. But any law professor who states or implies that there is any legal bar to the lawyer making the argument is lying and misusing his or her academic position.

[David Nieporent]

So it isn’t “legally” anything

No, it's legally frivolous. Or maybe it isn't; maybe there's an argument why it's legitimate. But the definition of "frivolous" is not "there's a rule against it," nor is the definition "judges can sanction it." You are loony on this point.

[LawTalkingGuy]

Couldn’t there theoretically be professional consequences for making frivolous arguments to the Senate for the attorneys representing the President? It is an adjudication before a tribunal after all. I don’t mean to say that there should be such consequences in this case or that these particular arguments are frivolous. But just that it’s theoretically possible there could be disciplinary consequences for lying to the Senate about the law.

[Noscitur a sociis]

I agree.

[Dilan Esper]

You can't be serious. How is making an argument that advances a client's interest and not prohibited by a tribunal EVER unethical? Indeed, it would be unethical NOT to make an allegedly "legally frivolous" argument that would convince 34 Senators to acquit.

[Noscitur a sociis]

Because the rules of professional conduct are an independent limitation on a lawyer's behavior, irrespective of the procedural rules of the court or other adjudicatory body in question. A lawyer can, for instance, be disciplined for presenting false evidence, even if the court didn't actually pass a rule against doing so.

[Dilan Esper]

The Rules of Professional Conduct INCLUDE a rule REQUIRING zealous advocacy of the client's interests.

Now, there's also a prohibition about making arguments that are contrary to controlling law without informing the tribunal of the existence of the contrary authority. But that doesn't get you where you want to go, because there's no controlling law in a Senate impeachment trial.

As for false evidence, Congress has prohibited false evidence. It's a federal crime to present perjury in an impeachment trial. So that's very different than presenting a "legally frivolous" argument.

I stand by my statement- a lawyer can be disciplined for NOT presenting an argument these law professors contend is "legally frivolous", if such an argument were persuasive to 34 Senators.

[Dilan Esper]

To expand on this- a fundamental error is made if you just read the words of rules of professional conduct without understanding the context.

The rules about candor to tribunals are important, but they are super-narrow. For instance, if you argue for 15 minutes about how a court should follow the holding of case and don't disclose some obvious distinction, that's NOT considered a rules violation. Maybe it should be. But it isn't.

Or if you lead a jury to believe that the police never found a murder weapon, but never explicitly say it, so that you can foment that belief in the jury without opening the door for the prosecution to tell them it was actually found but thrown out on a Fourth Amendment violation, that's NOT a rules violation. Again, maybe it should be, and if you skate too close to the line, you can get burned when the Court holds you opened the door. But it's not a rules violation.

The point is, the notion of "zealous advocacy for clients" is the base ethical rule for lawyers. We are supposed to use every lawful method to advance our clients' interests.

Are there limits? Sure. Narrow ones. We can't literally put on a witness we know is committing perjury. We can't alter documents. We can't literally tell a court a case held something when it held the opposite.

But we are supposed to try to win cases. And to do so, we can be selective, we can pander to the biases of the jury or the judge, we can use arguments that no rational person should accept but which we think are going to work in this situation, etc. Indeed, we are supposed to do them.

If the Republican Senators feel a phony First Amendment argument will give them cover, Donald Trump's lawyers are ETHICALLY REQUIRED to make it. As long as they don't literally misstate a case holding, that's an argument they have to make. That's their job.

[LawTalkingGuy]

If it’s a knowing misstatement of fact or law to the tribunal, that’s prohibited by Rule 3.3 (or however the different states label it).

[Dilan Esper]

Knowing mistatement of fact, sure.

But there's no such thing as a misstatement of law in this context, because there is no controlling law in an impeachment trial. It's whatever the Senate wants.

[Noscitur a sociis]

By way of illustration, DC Rule of Professional Conduct 3.1 prohibits a lawyer from advancing frivolous arguments in any "proceeding". Are you suggesting that an impeachment trial is not a "proceeding" for purposes of this rule?

[Dilan Esper]

No, I'm arguing that an argument that wins a case is never frivolous. Indeed, lawyers are ethically obligated to make arguments that win cases.

[Noscitur a sociis]

Indeed, lawyers are ethically obligated to make arguments that win cases.

Unless doing so would violate the other ethics rules of professional conduct, including the one that prohibits advancing frivolous arguments.

Now, if Trump's lawyers make the first amendment argument, and if Trump is indeed acquitted, that might be very powerful evidence that the law professors were wrong, and that the argument wasn't actually frivolous after all. But it doesn't mean that there's no such thing as a frivolous argument in the context of an impeachment trial, or that making one couldn't potentially be subject to professional discipline (although it almost certainly wouldn't in the real world, because no one ever actually gets disciplined for making frivolous arguments), or that anyone who characterizes an argument as frivolous is not only wrong but lying.

[Dilan Esper]

Again, IT ACTUALLY VIOLATES THE RULES OF PROFESSIONAL CONDUCT to refuse to make a winning argument. It's professional malpractice. You can get sued. Your insurer will raise your rates when you lose the lawsuit.

There isn't any other ethics rule of professional conduct that prohibits making free speech arguments that law professors disagree with IN THE SENATE. Even if there were such a rule, it would be construed incredibly narrowly just like all the other rules dealing with candor to the tribunal are. BECAUSE CLIENTS PAY US BIG MONEY TO WIN THEIR CASES AND WE WOULD BE COMMITTING FRAUD AND STEALING THEIR MONEY IF WE DIDN'T TRY TO WIN THEM.

This is super important. You really have no idea how legal ethics works. The client relationship is at the center of it. Issues about candor to the tribunal are strictly construed with only egregious lying prohibited. You are absolutely required to make arguments that you think to be absolutely vacuous if they will persuade the tribunal.

And yes, since there is no argument defined under Senate rules as frivolous, there's no such thing as a frivolous argument here. And A WINNING ARGUMENT IS NEVER FRIVOLOUS. Literally. If you make a winning argument, you cannot be sanctioned under Rule 11 because the judge thinks its frivolous. I'm dead serious here. If you suborned perjury or something, sure. But not frivolous. Any winning argument is meritorious, not frivolous.

[Dr. Ed 2]

I agree Dilan -- and what this will do is make Joe Sixpack start asking some serious questions about law schools.

The sunlight then shining down on them will be interesting...

[LawTalkingGuy]

Dude. Joe SixPack is a mythical archetype of your fascist imagination. You need to stop appealing to it, if you want to be taken seriously (which I’m pretty sure you don’t).

[Dr. Ed 2]

|/dev/null

[Kazinski]

I agree, impeachment is a political, not a legal process.

The First amendment says "Congress shall make no law...", impeachment is not a law, nor precedent for the courts.

Trump could not be charged, or convicted based on any publicly available evidence for his actions leading up to the capital invasion, but that doesn't foreclose impeachment in the least. A better argument is that a conviction would be moot, and the Senate now lacks any jurisdiction over a former president.

[Noscitur a sociis]

While that's true, I don't think it's unreasonable to think that senators might appreciate informed analysis when trying to evaluate whether or not the defense is applicable, and I don't see any inherent reason why law professors couldn't provide it.

[Dilan Esper]

Senators don't give a crap. In the history of Presidential impeachments, no Senator has ever based his or her vote to convict on anything a law professor says.

Indeed, I think it violates at least the spirit of the Constitution for a Senator to do so. The framers WANTED a political decision. That's why this is in the Senate and not a court. A Senator who makes an impeachment vote based on what a law professor says instead of what his or her constituents want is betraying the voters and the Constitution.

[Noscitur a sociis]

The last time Donald Trump was impeached, both sides brought in law professors to try to explain why their position was the legally sound one. That suggests to me that at the very least, there was a general sense that people wanted to be perceived as considering informed opinion, even if they didn't actually do so.

The fact that a court isn't reviewing the judgment of the Senate here doesn't mean that the senators shouldn't attempt to act as judges and apply a principled legal framework in determining their vote—if anything, the lack of review makes it all the more important that they act out of principle. Many will not, I'm sure. But for those of us without your weird chip on your should about law professors, it seems bizarre to criticize people for trying to illuminate the issues rather than obfuscate them.

[Dilan Esper]

They brought in law professors for the same reason drunks use lampposts, for support, not illumination.

It's a phony show and if law professors weren't publicity whores, they would have the self respect to decline the invitation.

[Dilan Esper]

The fact that a court isn’t reviewing the judgment of the Senate here doesn’t mean that the senators shouldn’t attempt to act as judges and apply a principled legal framework in determining their vote—if anything, the lack of review makes it all the more important that they act out of principle.

1. Dead wrong. If we wanted a legal decision, we'd have a court try impeachments. The whole point of giving it to the Senate is WE WANT politics to determine the result.

2. Politics IS a principle. I am amazed that you think political decisions aren't "principled" and legal decisions are. That's just a category error. Voting not to convict because you think the country will be served by helping your party is very much a vote of principle. That's the point- it IS principled. What's not principled is pretending to use law professors to justify political positions you hold anyway.

[Jason Cavanaugh]

It is not principled to say that one's "allegiance" to their political party is more important than the Oath of Office.

[DarrenM]

I don't think it's so much we WANT politics to determine the results as that it's inevitable that it does and it's better to acknowledge the reality and work with that.

[David Nieporent]

The framers WANTED a political decision.

No, they didn't.

That’s why this is in the Senate and not a court.

No, it's not. You are so far off base here that you're going to be declared AWOL.

A Senator who makes an impeachment vote based on what a law professor says instead of what his or her constituents want is betraying the voters and the Constitution.

Congratulations! You've managed to make a stupid argument even stupider! A senator takes no oath whatsoever to do what his constituents want. Not in impeachment, not at any other time. In any representative democracy, well, I don't want to plagiarize, so I'll openly quote: your representative owes you, not his industry only, but his judgement; and he betrays you instead of serving you if he sacrifices it to your opinion.

[aluchko]

As Blackman stated when trying to discredit the letter:

Alas, this nuance will be lost in public discourse. What matters is that 140 law professors submitted a letter arguing against Trump's First Amendment defenses.

i.e. The 140 lawyers know exactly what they're doing. Impeachment is a political process with legalistic overtones. GOP Senators want to let Trump off, but they want to do it for seemingly legitimate legal reasons, the "First Amendment Defense" is one of those reasons.

These lawyers all understand this defense to be nonsense, albeit for a variety of reasons. And as such they're making a political statement that if Senators acquit Trump based on First Amendment justifications then they're being driven by politics, not law.

[Dilan Esper]

Republicans don't need any legal cover to do what they are going to do. Mitch McConnell has taught you for years that they don't care about what law professors say. They aren't going to start now. Nor should they- impeachment trials are political and are supposed to be political.

[David Nieporent]

Republicans don’t need any legal cover to do what they are going to do.

As Noscitur a sociis pointed out, Republicans themselves disagree with you. They did not just say, "Nuh uh. We support Trump so acquit." They brought in law professors because either they actually cared what the professors said or they felt that they needed legal cover.

[David Nieporent]

Law professors need to just stop. If 34 Senators think a defense is not frivolous, it wouldn’t matter if every law professor in America disagreed with them.

No, you need to stop. This bizarre misunderstanding of yours of the process leads to weird sanctimony.

If law professors don't stop, then maybe 34 senators won't think a frivolous defense is not frivolous. Ever consider that?

[Dilan Esper]

David, name one Senator in one presidential impeachment who changes his or her vote because of something a law professor said.

This isn't a bizarre misunderstanding. It's what the Constitution says. It says politicians are going to decide it.

If the framers thought politicians would apply the law, they were just imbeciles.

You don't LIKE that this is a nasty, messy, gross, political decision. You are offended by it. But it's still true. If you want to change that, sponsor a constitutional amendment to take it away from the Senate.

[David Nieporent]

This isn’t a bizarre misunderstanding. It’s what the Constitution says. It says politicians are going to decide it.

Fun fact: the word "politicians" does not appear in the constitution.

[DaivdBehar]

This letter has the validity of wearing a Pussy Hat. It is an expression of partisan political feeling, devoid of the slightest validity, in law or in logic. Each of the lawyers needs to disclose their 2020 Presidential vote. All voted for Biden. They should be dismissed as Democrat partisans, agents of bit tech and of the Chinese Communist Party.

[TwelveInchPianist]

"If law professors don’t stop, then maybe 34 senators won’t think a frivolous defense is not frivolous. Ever consider that?"

If it's a winning defense but for the meddling of some law professors, then how's it frivolous?

The first amendment applies to impeachment trials if 34 senators say it does, and if 34 Senators say it provides more protection than the courts say, then it provides more protection. And Trump can tell the Senators why they should say that.

[Cal Cetín]

Professor 1: "Oh, before you go, we're circulating this petition. Will you sign?"

Professor 2: "What does it say?"

Professor 1: "I'm not sure, something about Trump being bad."

Professor 2: "I'd like to read it before I sign..."

Professor 1: "You wouldn't want me to strangle you with the cord of unanimity, would you?"

Professor 2: "OK, fine, here's my signature."

[santamonica811]

Cal,
I'm not understanding your point. Are you saying that you are unethical Prof # 1 or unethical Prof #2?

In real life, of course, what people who are different from you (in the sense of actually possessing ethics) do, in terms of response, is they do take the time to read things carefully. And, based on what Eugene says (and the 50-odd other tenured professors I know, in a dozen different subjects), no one seems to feel terribly pressured to sign things they don't believe in. But I do totally get that you have to judge people by your own standards. You seem weak enough so that you would let others pressure you...so you understandably have difficulty grasping that others might have integrity.

I'm not mad at you for you having your perspective and world-view. But I do pity you and genuinely feel bad for you. Ah well . . . we can't all be honorable men. (As Judge Smails famously said in "Caddyshack," 'Well--the world needs ditch-diggers too.')

[Cal Cetín]

It's interesting that, in attempting to say things about me, you manage disclose things about yourself - namely, your contempt for hard physical labor - which you probably acquired through honest laziness. The workmen you rely on to do the jobs you don't want are probably more reliable than you, and your wife probably thinks so as well.

Maybe things have gotten better since the event described by Robert Bork from when he was a professor and was asked to sign a petition against the Attorney General based on purely political grounds, without regard for the actual wording of the petition.

What are the odds, that thing have gotten better in the interim, or worse?

[santamonica811]

I assume you mean my husband and not my wife, but I get your point, regardless.

[Cal Cetín]

Where do you get your profound insights into the thought processes of those who don't have ethics?

[Sebastian Cremmington]

A positive to come out of Derpawitz’ is to reveal how dumb it is to have Americans with IQs over 140 going into the legal profession instead of building space ships. Having geniuses gravitate towards bucolic campuses in air conditioned ivory towers to pontificate on laws and documents drafted by second rate politicians is a gross misallocation of national brain power.

[Sebastian Cremmington]

^^^”Derpawitz’ impeachment testimony”

[Don Nico]

Your supposedly comical misspelling is sophomoric.

[Sebastian Cremmington]

Republicans—we didn’t listen to his appeal to authority in 1999 but now we are telling everyone he is an expert on the Constitution and his opinion should be respected! Duuuuuuuh.

[SuiteVoice]

The linked PDF consists of low-resolution images of text, and the internal links are broken. Here is the original text, with working internal links:

https://conlawscholars.medium.com/constitutional-law-scholars-on-president-trumps-first-amendment-defense-7b7507fe8abf

[DaivdBehar]

Did you say lawyers? Dismissed.
All professions should avoid religion and politics. In a divided nation, anything said will offend half the people, and hurt the profession.

[Jason Cavanaugh]

You haven't posted in a while comrade. Were you too busy detaining Navalny supporters to find time for your side job of being an illiterate troll?

[DaivdBehar]

Hi, Jason. Let me have your mailing address. I want to mail you a copy of Warriner's English Grammar and Composition. It will be my gift to a good Chinese Commie agent, internet friend.

[Jason Cavanaugh]

Like most Americans, having been born, raised, and educated in this country means I have no need for such a book.

Illiterate trolls such as yourself however, should probably spend more time studying it.

[santamonica811]

Jason,
What Daivd is trying to say is, "Yes, being a Russian troll has been pretty time-consuming lately. Thank you for asking."

[DaivdBehar]

Santa. What was the gender on your birth certificate?

[Sidney r finkel]

Wow, what an torture twisted way to argue that those who signed the letter do not agree with the contents of the letter. Logic, which is frequently missing from ultra right wing Trump supporters would argue that those who signed this letter of course agree unanimously that Trump is not entitled to a First Amendement defense against conviction in the trial resulting from his impeachment.

But being academics, there are many ways in which the signees could reach that conclusion, and the letter simply acknowledges that fact. But the post and many of the commentaries wish to read into the plurality of rationales a hidden reality, a reality about as real as Qanon, the conspiracy of Hugo Chavez to fix the voting machines, the Jewish space lasers and, well you get the picture.

One wonders how desperate the blindly Trumpians will get to explain away this inconsequential letter which for some reason they regard as so daming that it must be found to be fake news. Here are some explanations.

1. Many who signed it were told that if they did not their access to faculty dining rooms would be limited.
2. Many who signed it were told they did not have to read it and that it supported overturning the 2016 election and installling Hilary as the 45th President.
3. Many who signed it were told they could inherit Lou Dobbs spot on Fox Business News.
4. Many who signed were bald and were told they would get Rudy's secret hair gel.

and a bunch more explanations that make a lot more sense than what the original post says.

[Michael P]

The letter itself says that some -- perhaps even "many" -- of the signatories do not agree with most of it.

The letter itself also disagrees with you that "those who signed this letter of course agree unanimously that Trump is not entitled to a First Amendement [sic] defense against conviction in the trial resulting from his impeachment".

Please spare us the lectures on logic until you have improved your reading comprehension.

[Sidney r finkel]

If a person signs a letter that states that Donald Trump is not entitled to use the 1st A as a defense in his trial following impeachment, it is probably not an reasonable to conclud that the person does not believe that Donald Trump is entitled to use the 1st A as a defense in his trial following impeachment.

Of course in the bizarro world of Trump supporters I suppose one can conclude that a person who signs a letter stating that Trump is not entitled to use the 1st A as a defense in a trial following impeachment is really stating that they do believe Trump is entitled to use the 1st A as a defense. But back here in the real world . . . .

[Sidney r finkel]

Sorry, my typing is horrendous, my logic is impeccable, my sarcasm is biting.

[Krayt]

In his defense, "many" is a weasle word in this context, which is argument from (numerical) authority. Presumably if it crested 50%, they'd have said "most", or "almost all", if 80%.

[Tall Paul]

Certainly, there are respectable arguments against Trump's reliance on a First Amendment defense and law "scholars" who make such arguments would ordinarily be entitled to some respect. But not when they reveal a total absence of any objectivity when they "all agree" that any arguments in favor of such a defense would be "legally frivolous." Such statements not only discredit the signatories, but all law professors and "experts" in general. I suspect that quite a few of the people who signed this statement did so out of fear that if they refused, they'd be "canceled" or, as such punishment was previously known, "blacklisted."

[DaivdBehar]

Lawyers are Democrat. They are partisans pretending to be neutral experts. The letter is deceptive. At least, disclose the 2020 vote for President, so the reader may judge the credibility. The letter is just feelings, like wearing a Pussy Hat.

[bratschewurst]

But it isn't clear that all of the signatories agree on a single rationale of why a First Amendment defense would be "frivolous."

Irrelevant; assumes statements not made.

[DaivdBehar]

You talk like a lawyer. Why can't Artie?

[y81]

The real question is why anyone with a real job would care what law professors think. As someone commented on the Restatement of Property, why should American property law be governed, or even influenced, by a committee half of whose members believe that Al Gore can save America, while the other half believe that Al Gore is a sellout and that Ralph Nader is our only hope?

[Brett Bellmore]

Do they have any understanding AT ALL of the difference between, "Would be legally frivolous if advanced in a court of law", and "Is frivolous in a purely political trial"?

The prosecution is no less legally frivolous, remember.

[Life of Brian]

The prosecution is no less legally frivolous, remember.

Yeah, if I had a nickel for every smug "well, impeachment doesn't require [legal standard XYZ]" I've heard over the past few weeks, I'd be retired on the beaches of Tahiti. It's fascinating they suddenly expect the defense to hew to legal norms.

[TwelveInchPianist]

"...we all agree that any First Amendment defense raised by President Trump's attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office."

This is bizarre. The paraphrase implies that "legally frivolous" just means "wrong". That's not correct.

[DaivdBehar]

Frivolous means, no basis in law or in fact. This letter is just a made up partisan hit piece, by Biden voters.

[TwelveInchPianist]

IIUC it's worse than that. "Legally frivolous" means roughly that your action in not a good-faith attempt to get the tribunal to decide in your favor. And whatever else its faults, the there's no evidence of this with respect to the first amendment argument.

[DaveM]

My opinion of legal academics is sinking. It's not as bad as asking a Hollywood celebrity what they think of the Trump's defense, but it's a lot closer than I'd like to admit.

There is a time and a place for a discussion of the law. This is not it. An impeachment is non-reviewable by any Court of the land because there is no controlling law by which a decision could ever be adjudicated.

A complete non-starter of a legal topic.

[ReaderY]

The Supreme Court’s decisions are also unreviewable by any court. Like the Senate when it conducts an impeachment trial, it has only its own oath to uphold the Constitution, nothing more.

Does that make law irrelevant to what it does?

[ReaderY]

Given the types of defenses that defendents in criminal trials often offer, President Trump’s First Amendment Defense is hardly “legally frivolous.”

I continue to think that:

1. Former President Trump’s conduct is very likely unprotected by the First Amendent under Brandenburg, especially if, as I think. the President’s special duties permit conviction for reckless rather than intentional conduct.

2. Both the House impeachment managers and their supporting law professors are being very foolish by offering the unprotected-by-Brandenburg position as a last-ditch fallback position and spending most of their time on more aggressive arguments. Instead they should be giving a vigorous, full-throated, thorough, detailed argument explaining WHY Former President Trump’s conduct isn’t protected by Brandenburg and why the defense team is wrong in claiming it is.

By spending all their pages preaching to the choir, they might get some social virtue signalling points from like-minded colleagues. But they won’t persuade any wavering Senators who are considering convicting Trump but have doubts. The main argument has to be directed to wavering Senators, not to the already convinced. And that means they need to explain, carefully and thoroughly, why Trump’s conduct is not protected even under the most expansive conception of his First Amendment rights.

Arguing that the narrowest conception applies does nothing but give Senators a principled reason to vote to acquit. You have to argue to the middle, not to your own camp.

I fear politics has reached the point where the art of persuading others, including directing ones arguments to where they are rather than where one is oneself, may have gotten completely lost.

[F.D. Wolf]

A brief perusal of the faculty pages for some of these "constitutional law scholars" suggests that many probably haven't delved much into constitutional law since they were law school students. One was an adjunct professor and Maryland state judge. (I won't get into potential conflicts with the Maryland Code of Judicial Conduct.)

I remember many years ago a U.S. attorney told me that many potential jurors did not view perjury as a serious matter in the wake of the Clinton impeachment. So, who really "damaged our institutions"?

But where was the vast majority of opinion from our vaunted community of "constitutional law scholars" during the Clinton impeachment? Where it always is: with whatever position favors the Democrats at any given moment.

No one can seriously doubt that if this had been a Democrat president impeached by a Republican House, while everything else were the same, that the bulk of legal academia would have precisely the opposite positions they have now.

[Stephen Lathrop]

F.D. Wolf, with everything else the same? You are out of your mind.

But I will give you this, the next time Republicans get a chance to do it, they will try to impeach a Democratic Party president with nothing else the same. Just retaliation. Not only that, they will try to sell that as a principled thing to do. Because that is what Republicans have become.

The threat of it should give Democrats pause, but not for long. Let Trump's conduct go unpunished, and impeachment becomes a dead letter. There will never be a more impeachable offense by any President.

[F.D. Wolf]

I obviously won't pierce your sophisticated worldview of "Republicans bad, Democrats good", but if you believe this was the most impeachable offense that ever was or ever will be, what is your opinion of the first Trump impeachment that occurred barely a year earlier? Was that merely the second-most impeachable offense ever?

Are you familiar with the story of the little boy who cried "Wolf!"?

[Stephen Lathrop]

I said it was what Republicans have become. Perhaps they will change back. Not likely to happen soon, apparently. Too bad, I'm not that into Democrats either, although they got more of my votes than the Rs did, for the last 30 years or so.

Republican deterioration has been relentless. Now it's happening faster.

The nation would be far better off with a Kasich wing of the Republican Party challenging the Pelosi wing of the Democrats. But it is hard to imagine coherently in the midst of chaos, with a natural watershed election and generational transition coming up in 2024.

[Ohio Lawyer]

Well, the good thing is that no one cares what 150 law professors think. Will the braying mob support impeaching Schumer for threatening Gorsuch and Kavanaugh?

[Stephen Lathrop]

Josh, can you show that any of the signers disagreed with the overall summary offered by the NYT? Do you think they signed without reading?