The Volokh Conspiracy
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Today, President Trump's attorneys filed his trial memorandum. (The document filed last week was merely an "Answer"). My work was cited in two places. Both pieces were written well before the current impeachment process.
First, the attorneys discuss the fact that Chief Justice Robert will not preside at this impeachment trial. In 2019, Seth Barrett Tillman and I wrote about what would happen if Chief Justice Roberts was unable or unwilling to serve at an impeachment trial. In a follow-up post, I discussed whether this question was justiciable. I ultimately did not answer this question, but said the question was open under Walter Nixon v. U.S. Trump's attorneys suggested the issue was justiciable:
It is also true that, even if the Senate were to convict him without jurisdiction, such a decision would not go unchallenged. If Mr. Trump decides to run again, any non-binding "disqualification" from an unauthorized Senate vote could and would be challenged in a court of law. As scholars across the spectrum have agreed, certain aspects of impeachment are justiciable. For example, if, in a case like this, where "the President was tried by someone other than the Chief Justice,"92 a Court would be likely to hear the matter on review.
FN92: Josh Blackman, What happens if the Chief Justice cannot serve at the Presidential impeachment trial?,The Volokh Conspiracy(Nov.25, 2019), https://reason.com/volokh/2019/11/25/what-happens-ifthe-chief-justice-cannot-serve-at-the-presidential-impeachment-trial/.
Second, the attorneys cited my 2017 Lawfare post on obstruction of Justice. In that post, I first opined that the First Amendment would place limits on the impeachment process. The attorneys quoted a paragraph from my post.
The Constitution must, at a minimum, serve as a limitation on the ability of Congress to impeach for "high crimes and misdemeanors." As noted by a Constitutional scholar a few years ago, if that were not the case, there would be a host of internal contradictions within the Constitution that could not have been intended by the Framers:
Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever "high crimes and Misdemeanors" means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.
FN100: Josh Blackman, Obstruction of Justice and the Presidency: Part II, Lawfare (Dec. 12, 2017)(emphasis original), https://www.lawfareblog.com/obstruction-justice-and-presidency-part-ii/.
The Attorneys discuss Article 10 of the Johnson impeachment. Seth and I wrote about this Article in a January 14 post.
This is not the first time that Congress has impeached and tried to convict a President for making a speech, and the last time did not work either. The tenth Article of Impeachment against Andrew Johnson read as follows:
That said Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, which all officers of the government ought inviolably to preserve and maintain, and to excite the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly and before divers assemblages of citizens of the United States, convened in divers parts thereof, to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterwards, make and declare, with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that it to say:
While no vote was ever taken on the tenth Article, multiple Senators expressed their concern about trying to impeach for inflammatory rhetoric. James Patterson noted that "in view of the liberty of speech which our laws authorize, in view of the culpable license of speech which is practiced and allowed in other branches of the Government,I doubt if we can at present make low and scurrilous speeches a ground of impeachment."194 Senator Sherman echoed this view; while indicating his support for conviction on a number of the other articles, he voiced concerns about the tenth article, arguing that "we must guard against making crimes out of mere political differences or the abuse of the freedom of speech." FN195
FN195: Katherine Shaw, Impeachable Speech, 70 Emory L.J. at 62:
My view about impeachment and the First Amendment is not new. I've long held this position. And other scholars, including Professor Katherine Shaw, have agreed that the First Amendment should apply to the impeachment process. Indeed, several of the signatories of a recent scholars letter agree that the First Amendment applies to impeachment proceedings. Do I have a minority view? Sure. What else is new? Is it frivolous? Tell it to Senator Fessenden who chaired the Joint Committee on Reconstruction.
The attorneys use a third argument that Tillman and I have made: there is a distinction between elected and appointed positions with respect to the First Amendment:
Contrary to these express holdings of the Supreme Court, as announced more than fifty years ago, the House Managers assert in their memorandum that "the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests."116 In making this spurious claim, the Managers rely on two cases concerning appointed public employees, having inexplicably failed to bring to the Senate's attention the squarely and obviously on-point Supreme Court authority concerning elected public officials (discussed at length supra). . . . .
Such cases cannot serve as the basis for a First Amendment analysis of Mr. Trump, or in fact any president, because elected officials are different in kind from non-elected public employees under the First Amendment.
The President is not a civil servant. The President is not an appointed officer with limited policy-making decisions. The President is elected through a nationwide vote. And, in our view, the President should be afforded the widest latitude of free speech rights.
Fourth, the attorneys argued that Trump's speech was protected under the Brandenburg standard:
Absent an imminent threat, therefore, it is expressly within the First Amendment to advocate for the use of force; similarly, it is protected speech to advocate for violating the law; and as Mr. Trump did neither of these things, his speech at all times fell well within First Amendment protections. He thus cannot be subject to conviction by the Senate under well-established First Amendment jurisprudence. . . .
Courts do not deem speech unprotected based on how it could possibly be contorted or misunderstood by an unreasonable listener. Rather, they engage in an objective inquiry to determine how a reasonable person would understand the words. Otherwise, speakers at public events would be put at the mercy of the unhinged reactions of their most unreasonable audience members. That is exactly what happened on January 6th, but the Senate, composed of reasonable and erudite members, can take a few minutes and read the speech themselves.
Here, the attorneys cite co-blogger Eugene Volokh:
As the Sixth Circuit has recognized, "[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot."162 And unsurprisingly, "[t]here will rarely be enough evidence to create a jury question on whether a speaker was intending to incite imminent crime."163
FN163: Eugene Volokh, Crime–Facilitating Speech, 57 STAN.L.REV. 1095, 1190 (2005).
The trial begins tomorrow.