A Reply to the House of Representatives' Managers' Reply Memorandum

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[This post was co-authored by Josh Blackman and Seth Barrett Tillman.]

On Tuesday, February 9, 2021, the House Managers filed a Reply Memorandum. The Managers' Reply Memorandum made six primary arguments concerning the First Amendment. Here, we will respond to these arguments. 

First, the Managers' Reply Memorandum referenced a recent letter signed by 140+ academics. The Reply Memorandum asserted:

In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump's First Amendment defense is "legally frivolous."

Blackman previously explained why the academics' letter is problematic. The signatories take conflicting positions about how exactly (if at all) the First Amendment should apply to these impeachment proceedings. For example, the academics' letter states:

"Many of us believe that the First Amendment simply does not apply here [in the impeachment context]."

Many? How many? Is many most? A majority? A plurality? A minority? The academics' letter does not say.

Indeed, some of the signatories may in fact agree with our position about the relevance of the Brandenburg standard to the article of impeachment. What, then, was "legally frivolous"? Blackman explained:

The introductory section [of the academics' letter] 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."

It is not clear why the signatories believe a First Amendment defense is, in their view, "frivolous." More importantly, it is not clear they all actually do believe it is "frivolous." We expect that if there was no dissent among the signatories, the academics' letter would have expressed that unanimity clearly. If there was dissent, then the academics' letter should fully inform the reader as to the basis of that dissent. Instead, the Managers, and the press, only needed to quote the word "frivolous." 

Moreover, the academics' letter fails to address important evidence that the First Amendment applies to impeachment proceedings. We have discussed the record from President Johnson's impeachment trial. And our writings were very much in-line with what other scholars wrote prior to the events January 6, 2021. 

Second, the Managers' Reply Memorandum turns to the Johnson impeachment trial. The Managers wrote:

In fact, the Senate has confirmed that the First Amendment does not limit its power to convict in an impeachment proceeding. . . . No precedent supports President Trump's contrary view. [Trump's brief] cites the impeachment of President Johnson in 1868, contending that the Senate there established that a President cannot be convicted and disqualified based on his speech. But the Senate set no such precedent in President Johnson's impeachment. As President Trump notes, one of the articles of impeachment [Article 10] charged President Johnson with insulting and denouncing Congress by "mak[ing] and declar[ing] … certain intemperate, inflammatory, and scandalous harangues … [which] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States." While some Senators expressed concern that President Johnson's remarks were constitutionally protected, [FN72] others disagreed. Senator Jacob Howard, for example, stated that "[n]o question of the 'freedom of speech' arises here." [FN73] (emphasis added).

FN72: 3 Trial of Andrew Johnson 206 (1868) (speech of Sen. Joseph Fowler).

FN 73: Id. at 49 (speech of Sen. Jacob Howard).

This passage is problematic. It states, without any equivocation, that there is "no precedent." But the Managers do not explain what precisely they believe counts as a "precedent" in the impeachment context. In the judicial context, there is wide-ranging disagreement about what precisely constitutes a "precedent." In the impeachment context, this issue is even more contested. We acknowledge that there is no single view about what counts "precedent" for the impeachment process. There are a multitude of ways to answer this question reasonably. But the House managers do not even countenance this reasonable range of views. 

We think the Managers were wrong to make such an unqualified statement: there is "no precedent." Indeed, they cite evidence that undermines this bold assertion. For example, Footnote 72 cites a statement made by Senator Joseph Fowler who stated that President Johnson could raise the First Amendment as a defense in the impeachment process. He said, "However much I may condemn the style and tone of these speeches, I cannot see that Mr. Johnson did more than exercise that liberty of speech guaranteed to him by the Constitution and laws of the country."

Prominent members of the Reconstruction Congress agreed with Fowler, and argued that Johnson could raise the First Amendment as a defense. Furthermore, Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only "den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs." The President, Fessenden contended, has the right to communicate with the People. Fessenden chaired the Joint Committee on Reconstruction, which drafted what became the Fourteenth Amendment. We would wager that Senator Fessenden's knowledge of the impeachment process was substantial—every bit as substantial as the signatories of the academics' letter. Senator Fessenden's position is not "frivolous." 

Our position has never been that Senator Fessenden stated the only position about the propriety of a First Amendment defense in the impeachment context. But his statements, and those of his colleagues, rebuts the position in the academics' letter that the First Amendment is inapplicable in impeachment proceedings and is a "frivolous" argument. Moreover, Senator Fessenden's view has continued into the modern era. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right. 

Third, the Managers do not care what Senator Jacob Howard, Senator William Pitt Fessenden, or anyone else said during Johnson's Senate impeachment trial. The Managers' Reply Memorandum states that because the Senate never voted on Article 10, no precedent was set.

Ultimately the Senate never voted on the article and thus made no judgment about the relevance of the First Amendment.

This argument takes a cramped view of congressional practice in the impeachment context. First, there was a good reason why the Senate did not vote on Article 10. Earlier in the proceedings, the Senate failed to produce a conviction on Articles 2, 3, and 11. These articles, which concerned President Johnson's removal of Secretary of War Edwin Stanton, were viewed as the stronger charges. After Johnson was acquitted on those three charges, the Senate recognized that convictions on the weaker charges were unlikely. As a result, there was a general agreement to terminate proceedings. The House's failure to secure a conviction in the Senate reduces the claim that the House's articles of impeachment are good precedents. How "reduced" is a matter about which reasonable minds can, have, and do disagree. 

Indeed, the Managers' cramped view of congressional practice reminds us of Justice Scalia's long-standing criticism of legislative history. Justice Scalia argued that Congress can only act through voting on a statute. Therefore, courts should ignore legislative history because Congress does not vote on it. And Justice Scalia was loath to consider the legislative history of statutes that were never enacted. According to the Managers, unless the Senate actually votes on an article, the deliberations over that article can be discarded. Justice Scalia's views may make some sense in the context of run-of-the-mill dispute over statutory interpretation. But we should be more solicitous of Senate presidential impeachment deliberations, which are exceptional. Indeed, Senate precedent is routinely built on practices that do not lead to a final vote. Before President Trump was inaugurated, our nation had two presidential impeachment trials in two centuries. Every aspect of those proceedings have been carefully studied and reviewed in scholarship and judicial proceedings. Everyone has always thought that it was proper to do so. House and Senate impeachment proceedings are not akin to mere committee reports prepared by unknown staffers for a bill. The House and Senate regularly reproduce impeachment debates in their documents on congressional history, practice, and impeachment. 

The speeches of prominent Republicans who voted to acquit President Johnson cannot be dismissed as non-sequiturs. These carefully-considered views are not "frivolous" or irrelevant to understanding the impeachment process. There was a time when those votes were considered "profiles in courage." Now we are told by the Managers that those records are not relevant to understanding how impeachment works. That view is not and cannot be correct. 

Fourth, the Managers present something of an alternative argument: even if the First Amendment applies to the proceedings, then President Trump's speech would be deemed "incitement" under the Brandenburg standard: Later in this post, we will explain why the Managers are precluded from bringing this sort of lesser-included charge. Here, we will discuss why Trump's speech would be protected by the Brandenburg standard.

The Managers wrote:

In Brandenburg v. Ohio, the Supreme Court explained that, while the First Amendment prohibits states from punishing "mere advocacy," it does not preclude punishment for speech that is "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." President Trump's speech falls squarely within this exception for incitement. His statements on January 6, particularly in the context of his prior remarks, were "directed to" and "likely to incite or produce" imminent unlawful action. President Trump incited a crowd to go to the Capitol and fight, immediately before they stormed the Capitol. (emphasis added).

We emphasized the phrase, "particularly in the context of his prior remarks." We suggest the Managers recognize that Trump's January 6, 2021 speech, by itself, cannot meet the Brandenburg standard. Rather, they need to bring in "prior remarks." Which remarks, the Managers do not say. How old can those remarks be? Would the Managers consider everything Trump has ever said? Or do they mean to consider only the things Trump has said since the election? Or just statements he made since the election concerning the election? Alas, Brandenburg does not permit any of these expansive approaches. The focus on "imminence" counsels against such a sweeping probe of any past statements that could shed light on the purported "context" of the January 6.

On February 10, 2021, Adam Liptak wrote a commentary in the New York Times breaking down another Trump case concerning incitement.

. . . . Judge David J. Hale of the Federal District Court in Louisville, Ky., allowed a[n incitement] lawsuit against [Trump] to proceed, writing that incitement is a capacious term. Quoting Black's Law Dictionary, he wrote that it was defined as "'the act or an instance of provoking, urging on or stirring up,' or, in criminal law, 'the act of persuading another person to commit a crime.'"

Judge Hale also wrote that the protesters could satisfy the demanding First Amendment limits the Supreme Court had placed on incitement suits. . . . .

Judge Hale said the account of the rally presented in the protesters' lawsuit could clear the high [Brandenburg] bar. "It is plausible that Trump's direction to 'get 'em out of here' advocated the use of force," the judge wrote. "It was an order, an instruction, a command."

He added that the protesters had, at least at an early stage of the litigation, plausibly maintained that Mr. Trump had "intended for his statement to result in violence" and "was likely to result in violence."

But the United States Court of Appeals for the Sixth Circuit, in Cincinnati, reversed Judge Hale's decision, ruling that the Brandenburg decision protected Mr. Trump. "In the ears of some supporters, Trump's words may have had a tendency to elicit a physical response, in the event a disruptive protester refused to leave," Judge David W. McKeague wrote for the majority, "but they did not specifically advocate such a response." It was significant, too, Judge McKeague wrote, that Mr. Trump had added a caveat to his exhortation, according to the lawsuit. "Don't hurt 'em," Mr. Trump said. "If I say 'go get 'em,' I get in trouble with the press."

Mr. Trump offered a similarly mixed message on Jan. 6. Even as he urged his supporters to "go to the Capitol" and "fight like hell," he also made at least one milder comment. "I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard," he said.

Ordinary courts might consider the speech in isolation and credit the occasional calmer passage.

The Managers do not cite any incitement case that permits consideration of the "context of his prior remarks" in such an expansive fashion. If the Managers have such a case, they should bring it forward.

In our fourth point, we explained that the Manager's alternative argument is not supported by precedent. Brandenburg would not support a criminal conviction for incitement of violence. Our fifth point is more foundational. The House's article of impeachment does not mention or use the Brandenburg standard to charge the President. A draft version of the article relied on something akin to Brandenburg, but the adopted article removed that standard. Instead, the House made up a standard out of whole cloth: that Trump "willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol." 

The House chose that standard—they have nailed their colors to the mast. And that decision now binds the House, the Managers, and the Senate. Given the sole article of impeachment, the Managers are precluded from raising an alternate argument based on Brandenburg. In other words, the Managers cannot seek to convict Trump based on some other charge or theory of liability, even one akin to a lesser-included offense. 

If the House cannot secure a conviction based on the legal theory it has put forward, then the Managers cannot argue that Trump could still be convicted under other legal theories not alleged in the Article of Impeachment. Here, Trump's attorneys raised Brandenburg as a defense. The Managers could argue that Brandenburg has no place in the impeachment process. But the Managers are precluded from arguing that the Senators can also convict Trump under Brandenburg, a standard the House chose not to impeach on. In short, it is legally irrelevant whether Trump could be convicted under the Brandenburg standard.

Moreover, the House Managers and the Senate would violate the most basic sense of fair play if they tried and convicted Trump under a theory of liability which does not appear in the article of impeachment It violates conceptions of fair play to try and convict a defendant under a standard that was not charged. Likewise, Trump cannot be asked to put on a defense based on the Brandenburg standard, which the House intentionally dropped from its article of impeachment during the drafting process. 

Of course, the House could have decided to impeach Trump based on alternate theories of liability. For example, Article I could have relied on the novel theory the House created. And Article II could have relied on the Brandenburg standard.

Alternatively, the House could have adopted an article of impeachment that expressly reserved the right to draft and exhibit new or revised articles of impeachment. There is a long-standing tradition of such open-ended articles of impeachment that expressly reserve the right to exhibit new articles of impeachment. Indeed, the English Parliament was already using this practice more than three centuries ago. For example, the House of Commons' articles of impeachment against Lord Somers (circa) 1701 reserved the right of "exhibiting, at any time hereafter, any further articles" in the trial proceedings before the House of Lords. This phrase allowed the House of Commons to introduce new articles of impeachment. 

This exact language, or something very close to it, was also used in each of the antebellum American impeachment trials: i.e., the Senate impeachment trials of Senator Blount, Judge Pickering, Justice Chase, and Judge Peck. 

Article 9 in the Johnson Impeachment Trial used very similar language:

and the House of Representatives, by protestation, saving to themselves the liberty of exhibition, at any time hereafter, any further articles of their accusation or impeachment against the said Andrew Johnson, President of the United States

Even managers of state impeachments on the American frontier knew enough to make such a reservation. The Impeachment of Nebraska Governor Butler in 1871 used this language. However, the rushed article of impeachment adopted in January 2021 did not use this language. At this point, we have doubts that the House could introduce new articles of impeachment based on this same course of conduct. Moreover, adding new articles in the future would trigger a new unresolved late-impeachment question: can a former officeholder be impeached under revised articles of impeachment when he is already out of office, after having been impeached once while still in office, absent any reservation by the House to "replead." 

At this juncture, the Managers are stuck with the single article adopted by the House. If the House chooses an improper, legally defective standard, then no legally sufficient wrong has been alleged. In other words, there is no case to answer. We think these circumstances would resemble a prosecutor's indictment based on a violation of a non-existent crime. Given the House's defective "indictment," Senators could vote to acquit on these grounds. 

Sixth, the Managers respond to an argument that we have advanced, and which Trump's attorneys have adopted: different types of officeholders have different degrees of free speech rights. The Managers write:

These statements [by Trump] would not be protected whether they were made by an elected official, a civil servant, or a private citizen—contrary to President Trump's lengthy argument that those distinctions should matter. 

All three branches of government have long recognized the distinctions between civil servants, senior appointed officers, and elected officials. We didn't make these distinctions up. Look no further than the Hatch Act. The statute applies to civil servants and to appointed officers. But the President is exempt from this ban on politicking. Why? Why are elected members of Congress also exempt from this ban? This distinction is well-understood and deeply rooted in American law. If the Managers have any authority to the contrary, they should cite it.

Next, the Managers turn to a U.S. Supreme Court case: Wood v. Georgia (1981) (Warren, C.J.). The Managers' Reply brief states:

President Trump is not helped by his reliance on a case concerning punishment for statements made by an elected official "as a private citizen" that "did not present a danger to the administration of justice."FN78

FN78: See Wood, 370 U.S. at 382, 393, 395.

 A pro tip for law students: when a citation includes quotes strung out across non-consecutive pages, check if the quotations are taken out of context. The House managers made this precise error. 

The Managers' Reply Memorandum citation to Wood v. Georgia refers to 3 pages: 382, 393, and 395. 

First, page 382 includes this passage:

. . . the statements were made by petitioner in his capacity as a private citizen and not as sheriff of the county; that petitioner was directly and personally interested in the outcome of the current primary election not only as a private citizen but also as an announced candidate for public office in the general election to be held the following November, and in which election the petitioner would be running against the contestant who prevailed in the democratic primary. . . . (emphasis added)

Second, the Managers' Reply Memorandum cites page 393. But it does not quote anything on that page. And it is not at all clear what, if anything, the House Managers believe is relevant from that page.

Third, page 395 includes this passage:

Our examination of the content of petitioner's statements and the circumstances under which they were published leads us to conclude that they did not present a danger to the administration of justice that should vitiate his freedom to express his opinions in the manner chosen. (emphasis added) 

The passage on 382 about a "private citizen" did not affect the Court's analysis, thirteen pages later, about a "danger to the administration of justice." It isn't clear why the Managers strung together these two points. 

Moreover, the Petitioner in Wood v. Georgia was also a "candidate for public office" who gave the speech "as a private citizen." We have argued that Trump's speech at the Ellipse was not made in his capacity as a public official, but was, essentially, a private act. In giving that speech, Trump did not make use of government information, property, personnel, or powers that were entrusted to him by virtue of his former public position. Wood v. Georgia, as applied to the facts of January 6, 2021, provides even more support for our position: Trump's First Amendment free speech rights are relevant to the impeachment inquiry. 

The Managers also consider another Supreme Court decision: Bond v. Floyd (1966) (Warren, C.J.). The Managers' Reply Memorandum states: 

Nor does the Supreme Court's recognition that an elected legislator could not be excluded from state office for "criticizing public policy" advance President Trump's claim, where the Court distinguished that situation from one in which "a legislator swears to an oath pro forma while … manifesting his … indifference to the oath."FN79 President Trump's speech was not a criticism of public policy—rather, it was a repudiation of his oath of office as he incited a violent insurrection and then manifested callous indifference to its deadly consequences.

FN79: Bond, 385 U.S. at 132, 136.

Here too, the Managers strung out quotes that span several pages. Likewise, the Managers' use of ellipses alters the meaning of a passage from Chief Justice Warren's opinion. 

First, the Bond passage on page 132 states:

The State argues that the exclusion does not violate the First Amendment because the State has a right, under Article VI of the United States Constitution, to insist on loyalty to the Constitution as a condition of office. A legislator of course can be required to swear to support the Constitution of the United States as a condition of holding office, but that is not the issue in this case, as the record is uncontradicted that Bond has repeatedly expressed his willingness to swear to an oath provided for in the State and Federal Constitutions. Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath. Thus, we do not quarrel with the State's contention that the oath provisions of the United States and Georgia Constitutions do not violate the First Amendment. (emphasis added).

Second, the brief cites to page 136 of Bond. Here is the passage, which begins on page 135:

But this difference in treatment does not support the exclusion of Bond, for while the State has an interest in requiring its legislators to swear to a belief in constitutional processes of government, surely the oath gives it no interest in limiting its legislators' capacity to discuss their views of local or national policy. The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy. The central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964), is that "debate on public issues should be uninhibited, robust, and wide-open." We think the rationale of the New York Times case disposes of the claim that Bond's statements fell outside the range of constitutional protection. Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected. (emphasis added).

The Managers contend that Trump's speech at the Ellipse was "manifesting his . . . indifference to the oath." That is, Trump was violating his oath of office. Therefore, the argument goes, Trump does not receive the First Amendment rights associated with "criticizing public policy." In other words, the Managers argue that when the President violates his oath of office, he has reduced Free Speech rights. Chief Justice Warren's discussion in Bond was not referring to an officeholder whose actions conflict with his oath. Rather, the passage concerns whether the imposition of the oath itself violates the First Amendment:

Nor is this a case where a legislator swears to an oath pro forma while declaring or manifesting his disagreement with or indifference to the oath

On page 132, Chief Justice Warren speculated about an alternative case where the officeholder spoke about his "disagreement" with his oath. Imagine that an officeholder takes the oath with his fingers crossed to express a "disagreement" with the oath. Or the officeholder swears the oath, and immediately repudiates, and disagrees with that oath. Or the officeholder swears an oath with his hand placed on a copy of the now-defunct Mad Magazine. We think Chief Justice Warren's counterfactual was fairly straightforward.

However, the Managers use ellipses to omit a critical word from Bond: "disagreement." The Managers were trying to convey a different point: that Bond was about conduct that amounted to "indifference" to the oath. That is, conduct that violated the oath itself. The quoted passages from Bond did not articulate the Managers' point. Instead, those passages from Bond concerned a public official's expression of "disagreement with or indifference to" the content of the oath itself. There is a world of difference between these two positions: violating an oath, and disagreeing with the contents of an oath. The latter position cannot be converted to the former position through the use of ellipses.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

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  1. I appreciate the sentiment of Josh Blackman. However, the Democrat show trial should not be dignified with thoughtful reply. It is a tactic to prevent my voting for Trump in 2024. These are nasty, evil, agents of the tech billionaires and of the Chinese Communist Party. They are cheaters and deniers. No argument of fact, of law, or of logic can change anything.

    1. That’s not right. The Democrats are putting on a case for the public. In the television era, this is how impeachments and presidential scandals are handled, by both sides. The goal- which, to be clear, is basically futile- is to persuade enough voters that they turn up the heat on Republican Senators and flip their votes.

      Now, I can make an argument against futile impeachments. Certainly, there isn’t much justification to slow down e.g., coronavirus relief bills for the impeachment trial. But if they want to put on a futile impeachment, that’s entirely consistent with the text and purpose of the impeachment clause.

      The framers knew that by requiring a 2/3rds majority of Senators, impeachment would be a purely political exercise, and that only those narrow situations where huge majorities of the country agreed would a conviction result. I can criticize the framers on many other issues, but the impeachment clause is one of the most brilliantly drafted parts of the Constitution.

      It is inappropriate to judge the President by legal standards when deciding whether to remove from office. In fact, worrying about whether the President technically committed a crime would leave dangerous Presidents in office while removing benign ones. The framers understood this- and also understood that in the rare situation where all the political factions agreed the President had to go, there should be a process for doing so.

      It’s a wonderful thing. The only sad part is that people insist on making legal arguments, which are irrelevant to whether a President should be removed.

      1. It’s not an accident they’re making legal arguments.

        Laws, ideally, represent what we’ve already agree the rules should be, so crimes are in theory acts we’re already in agreement are wrongful, and properly punished.

        By framing the impeachment in legal terms, they want to invoke this shared conception of what is already agreed to be wrong, so that if they can demonstrate the acts actually took place, agreement that they should be punished is a given.

        That’s why they’ll say he “incited” the riot, not merely that he “encouraged”, or “provoked” it; Because incitement IS a crime.

        The problem is that the case for him having committed any genuine crime is ludicrously weak. So they’re trying to have it both ways: Charge crimes, and politically prosecute.

        1. As I said before, they rely on legal arguments the same way a drunk relies on a lamppost- for support, not illumination.

          I don’t think there is any shared conception of what the substantive grounds of impeachment are that could be the basis of “law”, and I also don’t think there could or should be.

          Rather, the entire universe of political considerations are legitimately in play. One of my favorite hypotheticals on this is imagine that Franklin Roosevelt was discovered to have been engaged in some sort of illegal corruption. It would be entirely appropriate for Democratic Senators to conclude that the country needed him and to not convict on that basis.

          I also think it is totally legitimate for Senators to consider that they might be voted out of office if they take the wrong vote. And believe me, this is a consideration for Senators of BOTH parties. Votes for convictions and well as acquittals are produced by this impulse.

          As I said, the full range of political considerations are properly at play. And when that is the case, it is simply not “law” in any real sense of the term. Senators will and should make a political judgment, just like the framers expected they would. If the framers had wanted a legal judgment, they knew how to give it to the courts. They didn’t.

          1. “As I said before, they rely on legal arguments the same way a drunk relies on a lamppost- for support, not illumination.
            I don’t think there is any shared conception of what the substantive grounds of impeachment are that could be the basis of “law”, and I also don’t think there could or should be.”

            The issue is, there should be a CONSISTENT standard for grounds for impeachment or expulsion for Congress. And based on past comments by members of Congress or the current administration, if there was a CONSISTENT standard, many of them should be expelled or impeached.

            1. Exactly the point I’ve been making for some time: In order to justify impeaching Trump, you have to lower the bar for impeachment so low, that you really ought to be going after dozens of Democrats over their complicity in last year’s riots.

              Literally some of the impeachment managers ought to be on trial alongside him!

            2. No, there shouldn’t be a consistent standard.

              Let’s say you have 2 Presidents:

              President A is one of the greatest leaders this country has ever had. She has 99 percent popularity. She led this country out of a war and secured a just peace while minimizing loss of life. She created an amazing government program that cut the crime rate by 66 percent and cut the poverty rate by 90 percent.

              President B is horrible. He has 3 percent popularity. Even his own party has abandoned him. He led this country into a horrible war that resulted in 1,000,000 American deaths. His negligence resulted in a terrible pollution problem. 10 million Americans lost their jobs due to the recession he caused with his bad policies and malfeasance.

              Now let’s say they both get caught doing the same crime with the same evidence.

              No way should there be a consistent impeachment standard.

              1. You’re advocating one standard, and it’s the one being used here: Screw what they did, you you like them?

                But it’s not the standard they claim to be using, now, is it?

                1. Who cares? Politicians always lie. Trying to explain their conduct by what they say is meaningless.

              2. Either something is worthy of impeachment, or it’ s not.

                Let’s take President A and President B. They both decide to shoot a their vice president.

                Under your values, you would go “Well, President A shot hit VP, but…he’s really good. So we don’t need to get rid of him”.

                Which is crazy.

                1. MY hypothetical shows it is not crazy.

                  1. You hypothetical just asserted a “crime”.

                    “Now let’s say they both get caught doing the same crime with the same evidence.”

                    I gave the crime. Murder. Under your standard, as long as you’re a popular enough president, you can kill your own VP and you shouldn’t be impeached. Right?

                    1. If a President committed straight up murder, I suspect you’d find the bipartisan consensus necessary for removal.

                      But if the circumstances were so extreme that you didn’t, that would probably mean there was some justification for the homicide that a large portion of Americans found compelling. And in that situation, I think the political nature of the impeachment process should account for that.

                      Remember, one edge scenario here is the Senate removing a popular President (and “reversing” an election) and causing the country to explode in rioting. In that scenario, you can be all pious about how the law was upheld, but that’s not the most important value here. The framers got that.

          2. “I also think it is totally legitimate for Senators to consider that they might be voted out of office if they take the wrong vote.”

            I guess that’s true. And now that you bring it up, late impeachments basically require that 2/3 of the Senate’s constituents insist that their Senators prevent them from electing Trump in the future.

            I suppose that is an argument against late impeachments.

          3. Senators will and should make a political judgment, just like the framers expected they would. If the framers had wanted a legal judgment, they knew how to give it to the courts. They didn’t.

            Once more: that’s just DilanEsperism; it is completely historical.

            1. Ugh. Autocorrect screwed that up badly. I wrote ahistorical.

              1. David, you are one. Can you explain to the class why Democrats have such ugly faces? It is the party of the facially challenged.

              2. If historians believe that the framers expected Senators to not act like politicians, than historians are rubes and dupes. If you think that, you are a rube and a dupe.

                Nobody hands an issue to politicians to decide if you want it decided based on legal principles. That’s the reality. And since the framers were politicians, they lied just like all other politicians. There’s no value in pretending what they say controls over what they actually did, which was give it to politicians.

                1. The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation.

  2. “In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump’s First Amendment defense is “legally frivolous.””

    How can this matter, when the prosecution case is legally frivolous, too? It can’t be that the prosecution can be political, but the defense has to act as though they were in a criminal courtroom.

    1. How can this matter, when the prosecution case is legally frivolous, too

      Almost as if it’s all frivolous.

    2. Brett, you seem to be insisting that if the president’s defense makes the mistake of hanging his fate on an inapplicable criminal courtroom argument, it isn’t fair to throw that out for being a bad criminal courtroom argument, in addition to being inapplicable.

      1. I’m insisting that, if the prosecution can play Calvinball, the defense can play Calvinball.

  3. Why do I feel, in many ways, this impeachment prosecution and defense is being done by blog post?

    1. Some of the jurors strategized today with the defense team, which one does not see in a typical “trial”.

      1. Others of the jurors strategized with the prosecution, equally unusual.

        1. Meanwhile one of the jurors is also the judge….

          1. Seems like Ray Stevens needs to do a refresh. https://www.youtube.com/watch?v=eYlJH81dSiw

          2. He is also a victim of the alleged crime, sitting as judge. A real judge refused to participate in this show trial.

          3. Presiding officer, who can be overruled on pretty much anything by a majority vote of the chamber he presides over. So not like a judge at all.

            Jurors don’t get to overrule a judge on jurisdictional rulings, but they clearly did here.

  4. Wow, I am stunned. The House managers must be totally unhinged. They’re now claiming the Michigan plot to kidnap Gov. Whitmer was Trump’s dry run for attacking the Capitol.

    You know, the plot orchestrated by a group that also hated Trump?

    I suppose next they’ll be blaming last years riots on him, too.

    1. They’ve already blamed Trump for the car attack in Charlottesville, North Carolina.

      1. I heard once Trump kicked a puppy. I mean it must be true, right….?

        1. Unlikely. Due to his germaphobia and his inability to care for other living things, he hates animals and thinks they’re for bumpkins like Pence. So he stays far away from them.

    2. I think they’re more concerned with the fact that after it was exposed, he showed zero concern, doubled down on his rhetoric against Whitmer, and made no point of denouncing violence.

      He has never once denounced political violence aimed at his political enemies. That’s the point. I mean we memory-holed these things; but he thought it was awesome that guy in Portland was extrajudicially killed by law enforcement (recall they didn’t “want” to arrest him) and he thought it was hilarious Ali Velshi was shot at with rubber bullets while reporting. He loves to see his enemies in physical pain. It brings him joy because he is a sick sick man.

      If Pelosi or Romney or AOC or any Democrat or insufficiently servile Republican had died, he’d barely be able to disguise his glee. (And so would many of the commenters here).

      1. Well, to be fair, it never got him anywhere to denounce anything; If it was something the media thought he should denounce, they just kept on asking him why he wouldn’t denounce it anyway. Violence, white supremacists, you name it: He can denounce stuff all he likes, and they keep on reporting that he didn’t.

        Of course, Trump DID denounce violence immediately after that incident. On Twitter. Which is why I had to link to the wayback machine, Twitter took down the evidence.

        “Governor Whitmer of Michigan has done a terrible job. She locked down her state for everyone, except her husband’s boating activities. The Federal Government provided tremendous help to the Great People of Michigan. My Justice Department and Federal Law Enforcement announced today that they foiled a dangerous plot against the Governor of Michigan. Rather than say thank you, she calls me a White Supremacist—while Biden and Democrats refuse to condemn Antifa, Anarchists, Looters and Mobs that burn down Democrat run cities I do not tolerate ANY extreme violence. Defending ALL Americans, even those who oppose and attack me, is what I will always do as your President! Governor Whitmer—open up your state, open up your schools, and open up your churches!”

        1. That’s not a condemnation if it’s buried in criticism, false victimhood, and demands that she does what he wants.

          It’s like how he told the mob to “stop” even though his “sacred” victory was being stolen.

          1. So what you really mean by “denounce” is, “affirm the Democratic party narrative”.

            1. Affirm the truth, for fucks sake!

            2. When the truth sounds like a “Democratic Party Narrative” it’s time for you to self reflect.

              I used to be a republican. Full on, elected as a party officer for years.

              I can not stand this detestable, gross, commie-like disregard for truth. Trump has infected your brains. You and the rest of the Trump cult were never principled conservatives. You were and are racists looking to dress up your vile personal insecurities with plausible cover.

              And Trump provides the bare thinnest cover, but appeals even more so to the IQ deficient among GOP voters who have a hard time deciphering the coded language conservatives use to dress up their vile racism.

      2. “He has never once denounced political violence”

        Google: CNN no less. “Trump denounces violence”

        https://www.cnn.com/2021/01/12/politics/donald-trump-riot-impeachment/index.html

        1. If you actually read the article, you’d see that:

          “ And he did not specifically decry attempts to find and kill political leaders, including his own vice president.”

          “It was only in an aside that he said: ‘You always have to avoid violence.’”

          “This impeachment is causing tremendous anger, and you’re doing it and it’s really a terrible thing that they’re doing,” he told reporters on the White House South Lawn. “For Nancy Pelosi and Chuck Schumer to continue on this path, I think it’s causing tremendous danger to our country, and it’s causing tremendous anger. I want no violence.”

          It’s not really a condemnation if you’re like “oh by the way violence is bad” but keep telling the lies that riled people up, fail to take any responsibility whatsoever for his words and acts, and shift the onus of avoiding violence on the people holding him accountable.

          You guys are really bad at this.

          1. No I read it. Here’s what you said…
            “made no point of denouncing violence.”

            Here’s what Trump said: “You always have to avoid violence.’”

            So….you’re wrong. Just wrong. You try to get out of it, but you’re wrong.

            1. But I can keep going for a while here

              “Mob violence goes against everything I believe in and everything our movement stands for. No true supporter of mine could truly endorse political violence,” Trump said.”

              https://thehill.com/homenews/administration/534146-trump-releases-his-lengthiest-denunciation-of-capitol-violence-just

              1. Oh wow. The forced CYA video that’s obviously all lies. Because he’s clearly incorrect, his supporters do endorse political violence. He once bragged he’d pay the legal fees of his supporters who beat up protestors.

                “The taped remarks followed a familiar script for Trump, who throughout his presidency has delivered inflammatory comments only to offer more conciliatory remarks under pressure to do so. “

                The only reason we didn’t see him backtrack and undercut the taped statement is because Twitter banned him. Otherwise he would have started riling people up again.

                You suck so hard at this.

                1. “You suck so hard at this.”
                  “Fine. I’ll amend.”

                  Uh huh…move those goalposts….

                  1. I learned from the best their chief.

                    1. *there

            2. And Again…

              “I want to be very clear; I unequivocally condemn the violence that we saw last week. Violence and vandalism have absolutely no place in our country and no place in our movement,”

              https://www.dw.com/en/donald-trump-condemns-us-capitol-violence-doesnt-mention-impeachment/a-56218910

            3. Am I? “Have to avoid violence” isn’t a denunciation. Like saying you have to avoid the interstate at rush hour.

              1. You are. You are completely wrong. To say Trump has “made no point of denouncing violence.” is completely and utterly wrong, in every way possible.

                1. Fine. I’ll amend. He’s never sincerely denounced it Show me a sincere one. That’s not forced after days of equivocating.

                  Show me an apology for laughing about violent acts committed against people.

                  Did he ever apologize to Ben
                  Jacobs for praising Gianforte? Did he ever apologize to Ali Velshi? What about the Lafayette Square people?

                  1. Now that you have absolutely, positively been shown to be wrong, with multiple quotes, you move your goalposts to when you can say Trump was “sincere”…which of course is only in your judgement. And you’ll never say he’s “sincere”.

                    Unbelievable.

                    1. Lol. You move the goalposts all the time. Want me to go through your history?

                    2. And I’ll never say he’s sincere because he’s a known liar who likes to praise violence when he knows he won’t be accountable for it.

                    3. When I’m wrong, I admit it. And I have. It’s a shame you can’t.

            4. And AGAIN from earlier (2018)

              “We condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence on many sides,”

              https://www.thedailybeast.com/trump-was-almost-put-on-a-ventilator-when-he-had-covid-nyt-reports

              But keep with the lies….Trump “made no point of denouncing violence.”

              1. Oh wow, the force’s Charlottesville statement that he was mad about being forced to say.

                Fine I’ll amend my statement. Show me one where he was being sincere.

                1. Now that you have absolutely, positively been shown to be wrong, with multiple quotes, you move your goalposts to when you can say Trump was “sincere”…which of course is only in your judgement.

                  Unbelievable.

                  1. It’s unbelievable how much effort you put into defending the sincerity of the words of a violent psychopath.

                    Birds of a feather perhaps?

                    1. It’s unfortunately entirely believable how much effort you put into denying that Trump said things he’s been multiply documented saying.

                      The claim wasn’t that he didn’t sincerely denounce violence, it was that he hadn’t denounced it at all.

                      Screw “sincerely”, that’s subjective. The words are there, that’s enough to prove you wrong.

  5. There are three key factors.

    1. The impeachment charges are not actual crimes. The statements Trump used do not meet the Brandenburg standard for incitement. Using historic statements by Trump to back it up is even worse for the Brandenburg standard. Does it NEED to be a crime for impeachment? No. But it certainly acts as a major factor. And the lack of an actual crime weakens the charges significantly.

    2. Previous actions and words by politicians that closely resemble the speech Trump used, in the context of protests and riots have not been used as grounds for impeachment or expelling. Why does this matter? Because if what was said was “so bad” than other examples should’ve been treated as “so bad” as well. But they were not. This brings in the concept that these charges are a post-hoc pseudo-criminalization of behavior that the party bring the charges did not, and would not bring against its own party members.

    3. The true issue is that the protestors were able to penetrate the Capitol. And this was not due to any special ability or unique violence on the part of the protestors. It was due to the criminal under-staffing of security of the Capitol. It was the same security as any standard day…despite the fact everyone was aware a major protest was occurring, despite turning down multiple offers of federal or National Guard help. Why? Who made this decision to criminally understaff security at the Capitol. Did this elevate to the Speaker of the House? And if so, should the Speaker be expelled for criminal negligence in handling security?

    1. I’d say everybody generally assumed, “Right wing protest, they’ll be peaceful and then clean up after themselves.” And then were shocked at what happened.

      The Democrats may talk for public consumption as though they think the right are violent maniacs, but they know who was really rioting last year, and which side is more likely to turn a protest into a riot.

      But, yes, the FBI reportedly WERE trying to tell them there was a threat, and the people in charge of Capitol security didn’t take them seriously.

      And that’s not the White house, it’s Congress.

      1. “I’d say everybody generally assumed, “Right wing protest, they’ll be peaceful and then clean up after themselves.””

        Even then. Staffing levels for Capitol police were at that for a normal business day. I am….amazed. Everyone knows when you have a major event, you increase staffing levels for security. It doesn’t matter if you think it will be peaceful. Marathons get increased staffing levels.

        Someone, at a VERY high level said “don’t increase security”. Odds are, it was Pelosi.

        1. I’ll grant that I’m somewhat amazed, too. I always assumed that just standard security at the Capitol would be better than this, that the Capitol building would be significantly ‘hardened’. It turns out that a Scout troop could bust in without trouble.

          1. I mean standard security is an average business day.

            But on a day, when you know there are protests and a large number of new people in town? What orders were passed to “stand down”? It’s nuts. Seriously THAT is the real crime here.

      2. “They think the right are violent maniacs.”

        Maybe all the violent second civil war rhetoric and the fact that there were major right-wing mass shooting incidents in the last four years has something to do with it? Maybe?

        Oh and let’s not forget that a lot of the police violence doesn’t get labeled “right-wing” because it’s from the State, but the right almost invariably supports it.

        Right-wingers lined up to excuse the killings of Eric Garner, Botham Jean, Breonna Taylor, Tamir Rice, Ahmaud Arbery (which was initially state endorsed), Daniel Shaver, etc etc ad nauseam. In fact, I don’t think there has ever been a widely publicized police killing that didn’t get significant right wing support at some stage. And that’s leaving out all the support for other police violence this summer (guy jn Buffalo, people being shot at with pepper balls while on their own porch, journalists getting their eyes shot at, Lafeyette square) etc. Name a police violence incident and the excuses and praised come flowing in.

        Indeed, if anything, maybe one of the reason that right-wingers are talking more violently now is because the CJ reform movement wants to reduce the state violence being used against THOSE people, and now they might have to do it themselves to keep the lesser people in line.

        1. Or maybe they just got the idea after last year, that if Democrats are allowed to riot and set occupied building on fire, day after day and week after week, that there was some kind of general moratorium on enforcing laws against political violence.

          1. They’ve been talking about this second civil war shit for years. Well before this summer. And El Paso had nothing to do with this summer. Neither did Christchurch. Or Charlottesville. Or Charleston church shooting. Or the Synagogue shootings. (And how quickly we forgot OKC.) Just violent right-wing extremists who bought into elimination rhetoric.

            And then think about how gross you guys are with Kyle Rittenhouse. Jesse Kelley praising him for “pelts on the wall.” It’s fucking depraved.

            And not to belabor the point: but as I’ve pointed out countless times, which you always double down on: you think you can kill people over property. You sound excited at the prospect. Look in the mirror for the violent right wing maniac.

            1. Yes, people on the right have been warning for years, “Keep attacking us, and eventually you’re going to get a civil war.”

              People on the left have kept attacking.

              That makes the right as violent as the left, I guess.

              Yes, I think you can kill people to stop them from stealing your property. I make no apology for that. The thief is the aggressor, if you want a functional society, the victims have to be able to defend themselves. If thieves don’t think property is worth killing somebody over, they can find another career.

              You think people can burn down buildings and loot stores if they’re aggravated. I think my position is more moral.

              1. Yes, people on the right have been warning for years, “Keep attacking us, and eventually you’re going to get a civil war.”

                Except you call not capitulating to you attacking you.

                Sorry – America is not appeasing you to avoid your dumbass threats of violence. Don’t pretend appeasement will end your threats. You get a seat at the electoral table like anyone else, which is more than you are willing to give us.
                A civil war wouldn’t work anyhow, we’re too clearly interconnected and stronger together; it’s all just talk from the frustrated but impotent.

                The only ones who talk about purging the other side on this blog are your side.
                Maybe clean your house first.

                1. “The only ones who talk about purging the other side on this blog are your side.”

                  Wow, you really have not been reading the comments here, have you?

                  I agree, a civil war would be a total disaster. Total disasters happen from time to time.

    2. And the lack of an actual crime weakens the charges significantly.

      Armchair, I can’t figure out where that comes from. An ordinary citizen acting with minimal care can advocate setting up a rival to the People for American sovereignty. It is completely legal to do that. But if the President does it, it still isn’t ordinary criminal conduct; but it is the very definition of a high crime, and one of the worst imaginable.

      1. You’ve got to be more precise with your word choices here.

        1. Armchair, if you do not understand the word choices—which I made using original meanings—then you should not be attempting generalizations like the one I quoted.

  6. “A Reply To The House Of Representatives’ Managers’ Reply Memorandum . . .Here, we will respond to these arguments.”>

  7. “Reply to the House of Representatives’ Managers’ Reply Memorandum”

    Getting flashbacks to first month civ pro discussing rebutters and surrebutters and all the other King’s Bench pleadings.

    When will this posting nightmare end?

    1. Meh. There’s worse things in the real world: motion for leave to file a reply instanter in support of the motion to strike plaintiff’s reply in support of their motion for leave to file a sur-reply in response to defendant’s reply in support of their motion for summary judgment.

  8. So now we have to add the First Amendment to the list of casualties from Trump Derangement Syndrome (TDS). Nice…

  9. The lawyers on both sides of the impeachment hoax are JEWS.

    Odd?

  10. The job of the President is to faithfully execute the laws, not execute those who are faithful to the law.

  11. More bad lawyering — or perhaps “motivated” would be a better word than “bad” — from Blackman:

    We emphasized the phrase, “particularly in the context of his prior remarks.” We suggest the Managers recognize that Trump’s January 6, 2021 speech, by itself, cannot meet the Brandenburg standard. Rather, they need to bring in “prior remarks.” Which remarks, the Managers do not say. How old can those remarks be? Would the Managers consider everything Trump has ever said? Or do they mean to consider only the things Trump has said since the election? Or just statements he made since the election concerning the election? Alas, Brandenburg does not permit any of these expansive approaches. The focus on “imminence” counsels against such a sweeping probe of any past statements that could shed light on the purported “context” of the January 6.

    Brandenburg sets forth two criteria for penalizing criminal advocacy: it must be (1) directed to inciting or producing imminent lawless action; and (2) likely to incite or produce such action.

    Trump’s prior remarks of course have nothing to do with imminence, but they do relate to intent — that his January 6 speech was “directed to” inciting imminent action.

    1. So, they fail the “and” part.

  12. Meanwhile, this — to quote Pauli — isn’t even wrong:

    The House chose that standard—they have nailed their colors to the mast. And that decision now binds the House, the Managers, and the Senate. Given the sole article of impeachment, the Managers are precluded from raising an alternate argument based on Brandenburg. In other words, the Managers cannot seek to convict Trump based on some other charge or theory of liability, even one akin to a lesser-included offense.

    If the House cannot secure a conviction based on the legal theory it has put forward, then the Managers cannot argue that Trump could still be convicted under other legal theories not alleged in the Article of Impeachment. Here, Trump’s attorneys raised Brandenburg as a defense. The Managers could argue that Brandenburg has no place in the impeachment process. But the Managers are precluded from arguing that the Senators can also convict Trump under Brandenburg, a standard the House chose not to impeach on. In short, it is legally irrelevant whether Trump could be convicted under the Brandenburg standard.

    There’s literally nothing in these quoted paragraphs that is anything other than verbal masturbation from Blackman. He conflates the concept of charges with theories, makes up “preclusions” out of whole cloth, and cites nothing in support of this.

  13. The bottom line that the R’s will acquit because (1) they are still afraid of Trump and his followers; and (2) they approve of what happened in January 6. That is what matters. This and the jurisdiction argument is just the pretext.

    1. They probably don’t approve of what happened on January 6, because it didn’t work. Failure is an orphan and all that.

      1. because it didn’t work

        What would have had to happen for “it” to “work”?

        How would the people involved have realistically accomplished that? With what resources?

        Please be specific.

        1. Enough members of Congress would have to be killed, incapacitated, or threatened so that a majority of each house could vote to reject the electors of enough states to give them a paper thin basis for declaring Trump the winner.

          As we saw on the videos, several people appeared to be looking for various members of Congress and were prepared to take hostages. All they needed was a few more minutes to get close to them.

          1. Perhaps all that was really intended was to intimidate Pence sufficiently that he would unilaterally declare electoral votes from swing states invalid, or too marred by controversy, and send them back to be, “corrected,” by state legislatures Republicans controlled.

            It sounds outlandish to me, but I doubt it would sound that way to Trump. Probably the intended follow-on was that any unrest which doing that occasioned could then be dealt with by mob violence.

            1. That. Rudy explained this strategy in his incompetently misdirected voice mail: cause delay in Congress’s counting the votes to give Trump time to intimidate state legislatures into illegally appointing unelected slates of electors, and then using the existence of those alternate slates as a fig leaf to give Republicans in Congress the opportunity to overturn the election.

          2. Enough members of Congress would have to be killed, incapacitated, or threatened so that a majority of each house could vote to reject the electors of enough states to give them a paper thin basis for declaring Trump the winner.

            Someone missed the “realistically” and “with what resources” parts of the question. Other than that, bang-up job….

        2. It doesn’t need to be a well thought out plan to be impeachable.

          This tantrum against our Republic is enough to make him not fit for office.

          Of course the insurrectionists were sure Trump would protect them once they stuck it to these deep state conspirators and the Truth came out.

          1. It doesn’t need to be a well thought out plan to be impeachable.

            Wow — it’s a good thing random people in the crowd of protests aren’t being impeached, then!

      2. No, actually it did work: All Trump’s efforts to challenge the election outcome became totally toxic, and they proceeded straight to certifying the result.

        As the only thing any rational person would have expected that riot to accomplish, I’m assuming that was the result intended by whoever organized it.

        1. “Events can’t be so random and dumb! There must be a plan behind it all!”

          And thus are conspiracies born.

          1. The House managers are claiming there’s a plan behind it all. Literally, they’re claiming the protest in Michigan and kidnapping plot were a “dry run” by Trump.

            They’re not settling for his being irresponsibly provocative, they’re claiming he intended a mob to descend on the Capitol and attack Senators.

            I’m just pointing out that, if this was planned, it makes more sense to think it was planned by somebody hostile to Trump.

  14. I will respond only to Professor Somin’s comments on the Brandenburg standard.

    First, I agree that the reply brief did not explain why the standard is met as clearly or in as mucj detail as it could or should have. It gave a paragraph, which was more than the couple of sentences in the original brief but far less than needed for what the House managers surely should have realized needed to be their primary argument if they wanted to have a chance of persuading 17 Republicans.

    But beyond that I will be blunt. Professor Blackman’s argument is such complete rubbish that if it would give me confidence if I ever saw him on the other side of litigation from me. He invents chimeras out of thin air and claims the prosecution mist be held to them. He interprets precedent in the rediculously narrow way that only a really desperate defense lawyer who has to come up with some argument, however incredible, to justify a client’s pay could come up with.

    Take his view that no precedent has ever held that a course of conduct over multiple events can be considered in a First Amendment context, only a single speech event. Professor Blackman has obvioisly never read a criminal case in his life. Numerous crimes – drug buys, murders, all sorts of things – get planned and discussed over multiple episodes. The idea that the existence of multiple planning events somehow results in the First Amendment protecting the planning-related speech from criminal prosecution is such complete hogwash as to make Professor Blackman’s presence on this blog, and for that matter his university, an embarassnent to both institutions.

    The same with Professor Blackman’s idea that the articles saying he incited the mob somehow require proof that that one speech was incitement and anything before and after doesn’t count.

    Mr. Trump planned multiple ways to overturn the election, including an assault on the Capitol. He communicated with followers and began preparationswell before January 6. The idea that his planning efforts somehow don’t count because the prosecution somehow tripped otself into some nonsense made-up box that exists only in Professor Blackmanms head is really beneath contempt. Same with the tweet denouncing Pence while his followers were erecting the gallows and hunting for Pence to hang him.

    If anything, Professor Blackman’s “defense” reinforces the prosecution’s point. The prosecution’s main claim is that you have to be willfully blind to pretend that Mr. Trump was just giving a fiery political speech that his followers just happened to overreact to. Professor Blckman’s argument is practically a manual for willful blindness. Only if you find excuses to throw out all the most relevant evidence can you conclude that there’s nothing there.

    If Professor Blackman is correct, it is very easy to order a hit without the law touching tou. All you have to do is (1) plan the hit over multiple stages in such a way that no one stage by itself contains all the elements necessary to convict, since per Professor Blackman the First Amendment requires that only a single stage can be considered, and (2) make sure you use euphemisms and don’t actually say to kill the person, as the First Amendment permits considering only the literal meaning of what you said as understood by an ordinary person, and does not permit considering either context or past behavior to get at either what you intended or the consistent and repeated actual effects of your words. The idea that a mafia don ordering hits has to be presumed to have been engaging in political speech umless there can be no possible interpretation otherwise, even after multiple hits have occurred, is simply rubbish. Same here.

    The sixth circuit’s reversal occurred early in Trump’s campaign. Perhaps he was entitled to the benefit of the doubt the first time. But a lot of instances of violence later, he just isn’t any more. And every instance where he incited a crowd to violence by speech that didn’t literally say to do violence is evidence of his modus operandi. That evidence is directly probative, amd is completely admissable.

    1. Don’t be s hard on a guy from a Tier 5 law school.

  15. Substantive question:
    How do “Abstain” votes affect the count needed for conviction.

    1. It takes 2/3rd of members present, so abstaining votes don’t count either way. (That is, if 50 members abstain, you only need 34 votes to convict.)

      1. Abstain != absent.

        1. Try proving they’re present if they don’t vote.

      2. Nope. You need 2/3 votes of those present. So if the Senators are on the floor and don’t vote, it is the same as voting no. If they boycott the vote and don’t show up then it would lower then number needed for conviction.

        1. But, like I said, they need to establish their presence for that to work. They can’t abstain from voting, they have to at least vote “present”.

  16. Moreover, the House Managers and the Senate would violate the most basic sense of fair play if they tried and convicted Trump under a theory of liability which does not appear in the article of impeachment It violates conceptions of fair play to try and convict a defendant under a standard that was not charged.

    You didn’t really think the House managers were interested in fair play, did you?

    1. The idea that either modus operendi evidence or each seperate instance of planning a crime has to be alleged in an indictment is hogwash.

  17. Michael Van Der Veen’s first argument on the First Amendment question today strikes me as frivolous. He asserts that the claim that the First Amendment doesn’t apply to impeachment is “plainly wrong.” His entire justification for this statement is to assert that, “The text of the First Amendment expressly prohibits Congress from regulating speech,” and then to quote the First Amendment in its entirety.

    The First Amendment states that, “Congress shall make no law….” His argument is premised on the listener not understanding that impeaching and convicting a President is not the same as passing a law.

    Later on he does get onto what might be more solid ground by arguing that the Supreme Court has expanded free speech protections beyond what is explicitly spelled out in the First Amendment. I don’t know because his first argument is too weak to inspire me to look up the cases he cites later.

  18. Just got a chance to watch the defense video. Kudos to PBS News Hour for showing it.

    But they buried the lede: The real big deal here is that Trump’s defense was able to show that some of the prosecution evidence was fabricated and/or manipulated.

    In a real trial, wouldn’t that be a big freaking deal?

    Example of faked evidence.

    The prosecution says, “”The final graphic accidentally had a blue verification checkmark on it, but the substance of it was entirely accurate,” the aide said.”

    How did the details of the tweet end up faked “by accident”? Did the graphic artist’s hand slip on their mouse, and they accidentally clicked “Insert fake details”, then the computer itself came up with the idea of adding a blue check?

  19. Just got a chance to watch the defense video. Kudos to PBS News Hour for showing it.

    But they buried the lede: The real big deal here is that Trump’s defense was able to show that some of the prosecution evidence was fabricated and/or manipulated.

    In a real trial, wouldn’t that be a big freaking deal?

  20. Example of faked evidence. (The prosecution thinks they might have found more, if they had actually been given advance access to the evidence to be used against Trump.)

    The prosecution says, “”The final graphic accidentally had a blue verification checkmark on it, but the substance of it was entirely accurate,” the aide said.”

    How did the details of the tweet end up faked “by accident”? Did the graphic artist’s hand slip on their mouse, and they accidentally clicked “Insert fake details”, then the computer itself came up with the idea of adding a blue check?

  21. In all the arguments I’ve seen about the 1st amendment applicability in an impeachment I’ve never seen any answer this question: Where is the 1st amendment exception to impeachment in the constitution? The 1st amendment applies to all citizens. The constitution says the Senate can set the rules for the trial, but that does not mean the Senate becomes a separate nation. The rules of the Senate still have to abide by the constitution. And the constitution gives EVERY citizen the right to free speech. If there is no exception to the 1st amendment in the constitution for impeachment, then the first amendment applies to impeachment. What am I missing?

    1. The fact that the 1A doesn’t say what you think it says.

  22. The fact that the 1A doesn’t say what you think it says.
    http://gg.gg/al-jazirah

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