My Washington Post Op Ed on Impeachment and the First Amendment

The op ed, published today, explains why the First Amendment doesn't protect Trump against impeachment and conviction for his role in the attack on the Capitol.


This morning, the Washington Post published my op ed on impeachment and the First Amendment. Here is an excerpt:

Former president Donald Trump is about to be tried in the Senate for his role in allegedly encouraging the Jan. 6 attack on the Capitol by a mob intent on overturning the results of the 2020 presidential election. Trump's lawyers and some legal scholars claim it would be unconstitutional to convict Trump, because his speech was protected by the First Amendment.

When he stood on the Ellipse and told the crowd that "if you don't fight like hell, you're not going to have a country anymore," and that "we're going to walk down Pennsylvania Avenue … we're going to the Capitol," he may have been provocative and unwise. But, so goes the argument, he was not inciting imminent violence, according to the standards established by the Supreme Court….

The First Amendment protects private citizens against criminal and civil sanctions for a wide range of speech. But it doesn't protect government officials against impeachment and conviction.

Under Supreme Court precedent, lower-level government employees have some significant protection against being fired because of their political views and speech. But the court has also made clear that higher-level policymaking employees enjoy no such protection. Indeed, high-ranking officials get fired because of their political speech all the time….

The idea that officials can be impeached and removed for noncriminal speech that violates duties of their office dates back to the Founding era. Two early impeachments of federal judges were brought on in large part by speech that indicated they could not be trusted to perform their duties properly…

I have previously written about impeachment and the First Amendment in a series of posts here at the Volokh Conspiracy blog. See here for the most recent, which includes links to others.

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  1. “The op ed, published today, explains why the First Amendment doesn’t protect Trump against impeachment and conviction for his role in the attack on the Capitol.”

    If he had had such a role.

    1. Well, the rioters certainly think so.

      Just ask them: they stormed the capital because Trump told them to.

      1. And, as I’ve noted, Son of Sam killed people because he thought Sam told him to. But we didn’t blame the dog.

        We hold people responsible for the reasonable implications of their speech, not what crazies would read into it.

        And if that’s not going to be the rule, a lot of Democrats should be facing removal from office after last year’s riots.

        1. But we didn’t blame the dog.

          If we had heard the dog say it with our own ears, we would’ve.

          1. We did: The dog barked and only the crazy people heard, “Go riot!”

            Like I said: We hold people responsible for the reasonable implications of their speech, not what crazies read into it. And if that’s going to change, retroactively, a lot of Democrats are going to be in trouble.

            1. No, everyone heard it except you, Brett.

              1. Not everybody hears the voices in your head, David. A quarter million or so people were protesting in DC, how many entered the Capitol building? A couple hundred?

                1. A quarter million or so people were protesting in DC

                  [Citation needed]

                  how many entered the Capitol building? A couple hundred?

                  More than that. But I’m not sure why “Not all crazy Trumpkins are criminals” is evidence that Trump didn’t incite the crowd.

          2. If we had heard the dog say it with our own ears, we would’ve.

            Did you hear it in the same voice in which you heard, “Hands up, don’t shoot!”?

      2. John Hinkley shot Reagan because Jodie Foster told him to, or something like that…

        1. Nothing like that. Your track record for fabrication is intact.

          1. Well, something like that: He was trying to impress her, anyway.

            I don’t think a bad memory is the same thing as lying.

          2. Nothing like that. Your track record for fabrication is intact.

            You thought fabricated narratives were awesome when they lead to days of rioting, destruction, destruction of a man’s career and general hatred of cops in Ferguson. MO. So awesome that you never could muster up the testicular fortitude to admit how wrong you were to support those narratives when they were exposed as bullshit.

  2. I suppose that incitement to riot would create criminal jeopardy for an ordinary citizen too. Presumably the threshold for what constitutes said incitement would be higher. Yes?

    1. Well, it certainly should be higher for a criminal conviction than for impeachment, or in other words we should hold our elected representatives to a higher standard than “not actually provably illegal beyond a reasonable doubt in a court of law”. But many Republicans are arguing the opposite.

      I don’t know that a prosecution in a criminal proceeding for incitement to riot would be successful. Hopefully we’ll find out.

      1. Clintons lawyers also argued the “not provably legal beyond a reasonable doubt” standard. It’s what the President always argues in these things.

        And that’s the folly of all these legal arguments. Impeachment is simply not a legal proceeding. It’s a political proceeding. 2/3rds of the Senate can remove a President, and the decision is not only not reviewable, but stands even if every law professor in the entire country disagrees with it.

  3. The worst president in history spent the final weeks of his term — up to and including January 6 — inciting his cultists to insurrection. His behavior has nothing to do with the First Amendment and everything to do with his gross violation of his oath of office. Every senator who takes his or her oath of office seriously must vote to convict and to bar this person from every again holding office. Senators who do not vote to convict are putting their own political futures above the interests of the country and are signalling to future presidents that they can get away with anything, especially toward the end of their terms.

    1. You clearly do not know US history.

    2. Yawn

      People who agree with me are serious, people who disagree are not.

    3. I’ve noticed that the nature of folks like you, who believe POTUS incited insurrection care as little about actual evidence as those who believe the catastrophic anthropogenic global warming narrative.

      That said, I’m all ears. Tell me how he incited insurrection. What did he say, or do, that goes directly towards a rebellion?

      p.s. do you think if Trump truly wanted a rebellion it would have gone off so weakly?

      1. Considering that Trump screwed up pretty much everything he touched over his four-year term, I do believe he also screwed up his efforts to overthrow the election and have himself declared the winner. We’re still waiting for the evidence of the fraud and vote-stealing that he and his superstar legal team have been promising us since November 4.

        Starting tomorrow, all you have to do is watch the trial as it unfolds in the Senate. The evidence presented will be enough to satisfy even you that he did, in fact, incite insurrection.

        1. So, what you’re saying is, you’ve got nothing? Because you didn’t cite anything he said to incite an insurrection.

          That said, I’ll be interested to see if Leahy actually permits Trump’s defense to present its arguments. I would be somewhat shocked if he doesn’t rule much of it out of order.

          1. I’m sorry you and Publius haven’t been paying attention, Brett. Maybe you should consider expanding your universe because everything you need to know has been repeated endlessly in grownup news sources. No reason to repeat it here — just follow the trial starting tomorrow. And in case you missed it, Trump was invited to present testimony in his defense, but he declined. I guess that’s what cowards and bullies do when they realize they’re losers.

            1. “No reason to repeat it here” = “I ain’t got squat, and don’t want to admit it.”

              1. Still afraid to read real newspapers, Brett?

                1. Still can’t cite anything? Think I have some obligation to prove your fantasies true for you?

                  Come on, if it was that obvious he incited a riot, you could be able to demonstrate it, not just suggest that we’re ignoring evidence you can’t be bothered to cite.

                  1. Do you think I have some obligation to teach you how to read newspapers?

            2. I guess that’s what cowards and bullies do when they realize they’re losers.

              You mean, make claims and then repeatedly dodge challenges to substantiate those claims? Cowardice indeed.

              1. Yes, that’s exactly it, Wuz. We can start with Trump’s allegations of fraud, then move on to his family, then members of the cult, then Rudy and the rest of the legal dream team, then to the delusional Republican senators and members of the House. All these people have spent every day since the election making false claims, and all of them have one thing in common: none of them has presented one ounce of evidence. That’s precisely what bullies and cowards have been doing. Very astute of you to point it out.

                1. Trump (and his team of legal crackpots) promised us hard evidence. Which I’m confident he will produce. Of course, he’ll first be producing all the evidence that his expert(s) uncovered in Hawaii that Obama was not born there, and then he’ll be producing his tax returns . . . I think those promises take precedence, no?

                  I’m totally convinced that Trump is a man of his word. So, when he makes a promise, he’ll keep it. Especially if it’s a promise that he repeated over and over (and over and over and over and over).

                  (I don’t consider broken promises like ‘Mexico will pay for the wall!!!’ to be actual lies, as I assume that he genuinely (although idiotically) believed that he could somehow force Mexico to pay for it, at the many many many many many many many times he made this promise.)

      2. Tell me how he incited insurrection. What did he say, or do, that goes directly towards a rebellion?

        Read the articles of impeachment, they are not long.

        Excerpted, in case you are lazy:

        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, D.C. 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.”

        President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.

        In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.

        1. I don’t think it’s unclear that, if you’re absolutely determined to interpret anything Trump says as incitement, you can find some words in there to hang onto. The guy isn’t talking like he was Mr. Rogers, he is at least as pugnacious in his rhetoric as any ordinary politician.

          There are two elements to this “incitement” charge, the rhetorical and the substantive.

          On the rhetorical side, you’re having to set the bar absurdly low, well into the range of normal political rhetoric. Telling your supporters they have to “fight” is pretty normal political speech. And you run into two big problems: First, that he told the people at the protest to protest “peacefully”, and second that it’s currently being proven that the violent element came to the event with premeditated intent to be violent, and so could not have been incited by anything he said there.

          Then there’s the substantive side: We’re being told that merely disputing the legitimacy of the election outcome and pursuing legal challenges is incitement to violence. Do I really have to point out how ugly and contrary to the normal operations of a free society that position is? How can simply pursuing your legal options, even if you do so beyond any reasonable point, legally be “incitement”?

          Again, lowering the bar to meet his conduct, rather than proving his conduct reaches where the bar is usually set.

          A key element of Trump’s defense is going to be a nice montage of Democrats all last year much more clearly and directly inciting riots. It’s going to be things that look uglier than anything Trump said, and much more directly relate to violence.

          1. Impeachment has the lowest bar, because the punishment is inconsequential in light of America probably having 150 million people eligible to be president at any given time. So Trump can’t be president…does that change the price of beer?? No…so who cares and pick someone eligible to be president.

            1. But Trump isn’t the only guy subject to impeachment or removal from office, and the bar for impeachment can’t logically be lower than itself.

              If Trump’s actions were impeachable, the House and Senate are going to be pretty busy removing people in the coming months.

              1. Prosecutorial discretion.

                1. Yeah, that’s the usual way to pronounce “double standard”.

          2. “Speech is violence”, or….something idiotic like that.

          3. . . . and second that it’s currently being proven that the violent element came to the event with premeditated intent to be violent, and so could not have been incited by anything he said there.

            Twaddle. No one is more dangerously incitable than someone already inclined toward violence. That prior inclination is not a mitigation of Trump’s offense, it is an aggravation of it. And that is before we reckon the cause of that prior inclination toward violence—a reckoning which also points straight toward Trump.

            For disloyalty and dereliction of duty, Trump’s conduct has been worse than Aaron Burr’s. It has been in about the same moral range as Benedict Arnold’s, except that Arnold’s betrayal was less consequential than Trump’s. Trump has not been the worst ever—not as bad as firing on Fort Sumter, after all, but that was not presidential. No president thus far has been as flagrantly in violation, nor as legitimately impeachable, as Trump has been. History will not struggle with that assessment, nor consider it a close case.

            1. So, you agree that Bernie was responsible for the House baseball shooting, and hundreds of Democrats are responsible for last summer’s riots?

              Glad we’ve made that clear.

    4. Nobody who is calling this an “insurrection” can be taken seriously.

      1. Unless they also think that yahoos burning police stations and federal courthouses and setting up autonomous zones are insurrectionists?

  4. Who cares, Ilya?

    1. Another sweet op ed for the long form resume.

  5. Can’t wait for this farce to be over.

    But I suppose we will then get 100 articles here on what the Senate got right/wrong.

  6. So, according to Somin, high crimes and misdemeanors don’t really require a crime and constitutional protections for speech don’t really protect against punishment for such a concocted “crime”. I guess the ends really do justify the means, or at least twisted legal reasoning.

    1. What you describe is literally the law of impeachment.

  7. I used to think that Trump’s First Amendment claims were bunk, or at the very least nonjudicible under Nixon.

    The fact that my view corresponds with a consistently wrong left-wing political hack like Somin is forcing me to reconsider.

    1. The fact that you think Prof. Somin is “left wing” should force you to consider whether your mother actually aborted you and they just forgot to sweep up the remains.

  8. Somin, you need to take a cold shower to reduce that boner.

  9. It’s my (not-expert) understanding that, in the decades before the Glorious Revolution, the Commons frequently impeached for conduct that didn’t violate the public law; the Lords never once convicted on that theory, and frequently didn’t even bother to try the case. But once the case was tried, it became law, as this one would certainly become, and court-made law can put one in jail or cause other punishment just as easily as the other kind.

    Personally, I think the question is resolved by the “Congress shall make no law” language, as it’s an entirely constitutional process that doesn’t eventuate in a law. The framers wrote an explicit limit on the practice of government, not a commandment.

    Mr. D.

  10. Now I find myself puzzled why Trump bothered to move to Mar-a-Lago, since he can live rent-free in Prof. Somin’s head.

    The professor has become a ‘one-horse pony’–too bad, at least some of his writing *used* to be entertaining.

  11. I think this is unwise. I think the First Amendment does protect presidents. I don’t think it would be constitutional to impeach a future Harry Truman for contempt of Comgress or similar for a speech similar to Truman’s “do nothing Congress” speech.

    Not only do I disagree on the substance, I disagree with the tone. The whole tenor of the op-ed reinforces the idea that all Trump did was make a political speech, and that’s all he’s being impeached for. If that’s the case, I think the defense should win. And I think many Senators, concerned with giving the majority party in Congress power to remove an elected President whenever it happens to have the numbers to prevail on a vote, might think this too.

    I think the impechment mangers, and Professor Somin, would better spend their time explaining why Trump’s behavior wasn’t just a political speech that a few followers happened to ovverrect to. Rather, he caused his followers to act, he knew or should have known he was doing so, and his incitement of imminent lawless action lies outside the protection of the First Amendment under standard First Amendment principles and precedents.

    Characterizing the principal dispute in this impeachment as being about whether political speech is impeachable or not gravely understates, indeed trivializes, what Trump is being accused of it.

    That’s why I’m having so much difficulty with people focusing all their energy on this question. This is the question Trump’s defense lawyers should be getting people to focus on, not the House impeachment managers. If the question is whether a President is so completely lacking in First Amendment protection that Congress can impeach and disqualify him for pure speech and nothing more, and conviction is associated with a yes answer to that question, then I think the obvious answer to that question is no, and that means the defense wins.

    1. ReaderY, points well made.

      Also needed: An easy-to-understand explanation for the public, which distinguishes “high crimes and misdemeanors,” from ordinary criminal offenses which get charged in courts like you see on, “Law and Order.” Until we get both, too much of the public will conflate advocacy of insurrection with free political speech, and conflate attempts to subvert an election with going all out to win an election.

    2. I posted weeks ago (as well as a year or two ago, about this).

      Imagine a president (Trump, Rubio, H. Clinton, Biden…doesn’t matter who, or from which party) giving a speech. Say, his/her State of the Union. In this speech, the president makes the following points:
      1.Blacks are sub-human. I (as president) will do everything in my power to return slavery to the United States. This will mean a Constitutional Amendment, of course. And I will expend as much political capital as needed to pass this.
      2. Guns are too dangerous to be in the hands of your idiot taxpayers. I will work to pass an Amendment stripping away and 2nd Am. protections. In the meantime, I will sign as many executive orders as I can, to cut off your right to own a gun…for hunting, for protection in your own homes, etc.
      3. I think that rape is a made-up scam. I will work to pass federal legislation decriminalizing sexual assault of women nationwide.
      4. I love the goals of NAMBLA. I’ll similarly work to pass federal legislation permitting adults to have sex with children of any age.
      5. I think N. Korea can be our biggest ally. Therefore, 6 months from today, I will declassify all nuclear secrets and will pass them on directly to NK. Actually, to Iran as well.
      6. Consistent with #5, I will declassify all our intelligence information, and will pass on to Russia, Cuba, NK, and Iran the identities of all American covert operatives, and all our foreign assets.
      7. I will work with Congress to pass legislation that calls for lifetime imprisonment for women who have abortions for any reason, and the same punishment for their doctors. (Or, the opposite argument: I call for abortion on demand, and will also work for legislation calling for mandatory abortions after you have one child…and mandatory sterilizations after this first child.)

      And so on…

      According to Josh, Congress could not impeach a president for the above. There is no dispute that all the above goals and comments are fully protected by the First Amendment (this fictitious president will be going about all his/her goals in the legally proper ways, will not be passing on any classified secrets to our enemies, etc.)

      The idea that Congress could not protect America against a President who was so extreme, just because the words are protected is . . . well, unconvincing.

      1. And I would agree. Comgress cannot impeach a President simply because it finds his views and policies odious. This is more or less what the Johnson acquital established. President Johnson wanted policies similar to what you are saying. He didn’t want ex-slaves to have full social or legal or voting rights, something the Radical Republicans found odious, as you would. But that’s not an impeachable offense.

        Presidents absolutely can advocate decriminalizing currently criminal conduct, criminalizing currently legal conduct, amending the constitution, changing our alliances, etc., and none of these things are impeachable no matter how wrong you feel they are.

  12. Professor Somin,

    In 1948, President Harry Truman famously campaigned against the 80th Congress, calling it a “Do Nothing Congress.”

    Under your theory, if the Republicans had had a 2/3 majority in the Senate, could they have constitutionally impeached Truman, removed him from office, and barred him from ever holding office again, on a charge of contempt of Congress?

    I understand if they had done so their action would be unreviswable by the courts. My question involves only their own consciences, sense of duty, oaths of office, and desire to act within the law.

    If the First Amendment does not apply to impeachment proceedings at all, it would seem to me that impeachment of a President for conduct like Truman’s would be completely permissable, and Senators could vote to convict, remove, and disqualify future Trumans who speak ill of them with the blessing of the Constitution and completely clean consciences.

    If the Constitution doesn’t permit it, why, under your theory, doesn’t it?

    Thaks in advance.

  13. Former president Donald Trump is about to be tried in the Senate for his role in allegedly encouraging the Jan. is shocking news

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