Impeachment and the First Amendment, Revisited


We are now two weeks removed from the Senate impeachment trial. Already, that enervating saga has faded into our polity's rear-view mirror. I hope that this distance provides an opportunity for calm reflection on the legal arguments raised in those proceedings. Specifically, I'd like to address the First Amendment and the impeachment process. 

Prior to January 6, 2021, most people never considered the interaction between the First Amendment and the impeachment process. I had. In 2017, I wrote a widely-read Lawfare post on obstruction of justice and the presidency. (Trump's lawyers would cite this post). I argued that the Constitution imposes certain limits on Congress' powers to regulate the presidency. And I argued that these particular limitations apply with respect to civil laws, criminal laws, and even the impeachment process. That is, Congress could not impeach the President for conduct that complies with the Constitution. And this limitation cuts in two directions. Congress could not impeach the President for exercising a specific power delegated by Article II. And Congress could not impeach the President for conduct that is expressly protected by the Bill of Rights.

My Lawfare series caused a stir. Critics argued that the Constitution does not limit the impeachment process: Congress could impeach the President for just about any reasoneven if the President was complying with the Constitution. Other critics accepted my general premise, but countered that Trump's conduct was not consistent with the Constitution. Still, I did not think my position was frivolous. I wrote that the 1868 impeachment trial of Andrew Johnson implicated the freedom of speech. At the time, I didn't dig through the records, but I presumed that Johnson's acquittal was based, at least in part, on the First Amendment.

My presumption was correct. Several prominent Senators stated that the President has First Amendment rights, and that the Senate could not convict the President for exercising those rights. The views of these Senators were not monolithic. But we are not dealing with a judicial proceeding in which there is a single decision-maker who reaches a single final answer to a constitutional question. Different senators expressed different views. But the position I held was held at least since the 1860s. 

My position may be right or wrong, but it cannot be frivolous. To say my position is frivolous is to charge with incompetence those who framed the Fourteenth Amendment. Indeed, the records of these debates have been carefully examined for more than 150 years. As far as I am aware, no one ever suggested that these members of Congress were wrong. Indeed, one prominent impeachment scholar favorably cited these sources. I encourage everyone to read Professor Kate Shaw's article, Impeachable Speech, in the Emory Law Journal. She suggested that the First Amendment, and the Brandenburg test in particular, could constrain the impeachment process. Professor Shaw published this article behind the proverbial veil of ignorance in mid-2020, long before January 6. Trump's lawyers favorably cited her work.

Before January 6, no one had ever argued that the views of these senators articulated during the first presidential impeachment trial were frivolous. What changed after January 6? This position did not suddenly become frivolous. Rather, this argument got in the way of a movement. And it had to be squashed. 150 scholars signed an incoherent statement that didn't even acknowledge the history from the Johnson impeachment. Yet, the press and the House Managers dutifully cited this letter as a definitive statement about the First Amendment. 

The willingness to charge the Framers of the 14th Amendment with incompetence reminds me of a similar willingness to charge our first President with incompetence, or worse. To this day, the key to the Bastille hangs on the wall at Mt. Vernon. The Marquis de Lefayette gave that famous key, and a painting, to President Washington. Countless generations of scholars and schoolchildren have walked past that key. 

Until 2016, we are not aware that anyone suggested that Washington's acceptance of that foreign state gift violated the Foreign Emoluments Clause. Yet, after President Trump's elections, some people were content to suggest that our first President violated the Constitution he helped to define.

For some time, I have thought that the entire Constitution, including the First Amendment, constrains Congress' impeachment powers. My position became mightily inconvenient after January 6. But the Constitution often imposes inconvenient constraints. 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. 

NEXT: New Colorado Bill Would Create Commission to Restrict "Hate Speech," "Fake News," "Conspiracy Theories" on Social Media Platforms

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  1. Well, I have enjoyed this column, but it is clearly headed for cancelation.
    It is known by all experts that the president can be impeached for any reason at all, providing the legislature is democratic, and the president republican. To even suggest otherwise is treason and insurrection and racism and sexism and some other -ism not yet invented.
    I wish you well in your next employment, if you find any.

    1. Lots of empirically verifiable hypotheses in here to point to when they are shown wrong later. The carelessness of conservative hyperbole continues.

      1. Desperate, disaffected, vanquished people say — and believe, or at least claim to believe — strange things.

    2. Ismism is the wordism you are looking for. I just made it up and bequeath it to the public domain.

      1. I have long used “*ism” as “*” is the traditional wildcard search character.

    3. On a more serious note, future historians will view Pelosi with more contempt than Joe McCarthy, and the impeachments with more contempt than the Dred Scott case.

      Unlike after _Scott v Sanford_, hopefully we will be able to avoid a shooting civil war.

      1. You may well be right. After all, the movie Idiocracy is proving to be more prophetic with every passing year…

      2. Dr. Ed 2 : On a more serious note, future historians will view Pelosi with more contempt than Joe McCarthy

        Nostradamus Ed strikes again!

        Fresh after predicting an eminent Second Civil War – right after foretelling transgender athletes as the downfall of the Biden Administration – our own resident oracle now predicts History will rescue President DumpsterFire from the repercussions of his own clownish & sleazy actions.

        By the Monkey-Typewriter-Shakespeare-Principal, Ed will be right one day. It’s a function of pure volume alone. But not today.

        1. I’m still waiting for the general truckers’ strike.

  2. Your argument was not frivolous (you seem sensitive enough about it that I’m curious who is accusing you of that) but I also think it’s wrong. Congress can impeach for any reason or none. They could impeach because he parts his hair the wrong way or wears the wrong tie. That doesn’t mean doing so is wise or politically practical.

    Jackson’s impeachment was defeated, in part, because several senators then agreed with his First Amendment defense. While a useful precedent (and in my opinion, wise policy), it was not and cannot be a binding interpretation on future Senates.

    1. It’s an argument over what Congress is authorized to do, vs what they can get away with doing, essentially. Some people think that an important distinction, some people figure you’re allowed to do anything nobody can stop you from doing.

      Congress can clearly impeach and convict on any basis whatsoever, protected speech, religious views, race, you name it. In the sense of getting away with it, there are no limits.

      Are they authorized by the Constitution to impeach because they don’t like somebody’s race or religion? Most people would say, “No.”, I’d think. Well, it’s pretty hard to characterize constitutionally protected speech as a “high crime or misdemeanor”, but respect for freedom of speech IS declining, so the idea isn’t as absurd anymore as it might have been at one time.

      1. The whole point of giving it to Congress was to prevent the legal system from imposing limits on reasons for impeachment.

        The framers weren’t stupid. They could have given it to a court and gotten legal rules. They didn’t.

        1. So the Framers didn’t say the legislatures should follow the Constitution and legal rules? Actually they said over and over again that’s what they expected. This comment is more about your cynicism than anything else.

          1. The framers did not say that the Senate would follow legal rules, and further, as unprincipled politicians themselves, they fully understood that the Senate wouldn’t.

            1. The Framers said each and all branches should strive to be faithful to the Constitution and had an equal *duty* to interpret it correctly, they were almost all experts in the Common Law. You’re imputing your cynicism regarding legislatures to them.

              1. Queen Amalthea, constitutional review by the courts is for government powers. Impeachment is not a government power. It is a sovereign power, on a par with voting in elections. The courts have no power to constrain the sovereign.

                American constitutionalism decreed government cooperation with particular sovereign-power methods for selecting the holders of political office—elections and appointments. American constitutionalism likewise decreed sovereign-power methods for emergency removals from political or appointed office—impeachments and convictions.

                None of those are subject to substantive review by government, including the courts. To suggest otherwise is to suggest the government can constrain the sovereign which created it, which is nonsense.

                1. This is nonsense. The people are sovereign, yet government constrains the people all the time.

                  1. Squirrelloid, citizens of the U.S. enjoy a dual capacity. They are sovereign jointly, but subjects individually. What government may do with regard to them depends on which category applies. For instance, government has no power to effect the outcome of an election, it may only count the votes. The vote total, once known, is a sovereign decree, not alterable by government. Likewise with an impeachment. A vote to convict is also a sovereign decree, not subject to review. The Constitution makes that explicit, calling it a, “sole power,” of the Senate. That means no one else gets a say.

                    None of that has anything to do with government power to regulate conduct by individuals subject to the general laws.

          2. Do you really think the framers were that naive that they didn’t know how legislators behave?

            That is of course why they forbid them from passing bills of attainder, or imposing any other penalty than removal and disqualification from office, specifically because they knew how far they would go with no constraints.

            Wise men. I’d fear to see what Nancy Pelosi would have come up with if a bill of attainder was on the table.

        2. “The whole point of giving it to Congress was to prevent the legal system from imposing limits on reasons for impeachment.”

          Which is not the same as saying that they didn’t expect Congress to impose some limits on itself.

          1. Well said.

          2. An unwritten ‘some limits’ doesn’t really seem Constitutionally cognizable.

            1. I said as much myself.

              There are two competing understanding of “you can’t do that!” at work here: What Congress is constitutionally entitled to do, and what Congress, constitutionally, can get away with.

              There aren’t a lot of judicable constitutional limits on impeachment. Who is subject to impeachment, and the available consequences, and that’s about it.

              Doesn’t mean there aren’t further limitations that Congress has it’s own obligation to respect.

              1. Sure, I agree. That’s why the whole ‘We’ll impeach Obama next!!!’ has always seemed silly to me.

                But that’s not Blackmans’ thesis.

                1. Sure, it is. His thesis is that the 1st amendment is among those “further limitations”.

                  NOT that the judiciary would enforce those further limitations.

                  1. Limitations without remedy aren’t.

                    1. And that’s where we get back to the two perspectives I’m talking about: What you have authority to do, and what you have the right to do.

                      You’re collapsing the two categories, assuming Congress has the right to do anything they can’t be stopped from doing. You’re operating from the perspective that “wrong” means nothing but “I could be punished for doing it.”

                      They may have been naive to think it, but the Constitution assumes Congress actually cares about the Constitution even when no outside force is in a position to compel them to.

                    2. Brett, there is always power outside government to compel it to act. That is what it means for a nation to be ruled under a sovereign. That sovereign power is what constrains limited government to act within its prescribed limits. Sovereign power is the only power able to vindicate the rights of citizens against abusive governments. If there were no such power, you would have no enforceable rights at all.

                      Perhaps you make the mistake of supposing that if the sovereign’s pleasure does not align with your preference, that means the sovereign lacks power.

                    3. Blackman is talking about “limits on Congress’ powers” not this rights-not-authorities thing you’ve ginned up. So your defense of his post is not on point.

                      Separately, I take issue with your interpretation here.
                      Whether originalist or living Constitutionalist, one starts with the text.
                      The balance of authorities laid out in the Constitution does not including any emanations from nongermane Amendments.

            2. The limits are written. “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Which, we know from the written history, is narrower than Maladministration.

              A Congress that impeached and/or removed a president for how he parts his hair has done an unconstitutional act, even if not reviewable by any Article III court. The individual Congresspersons have violated their oath of office.

              This was simple and obvious to the Founding Fathers. It is only in the modern era, when we have abdicated Constitutional responsibility to the courts, that people feel that “unconstitutional” means only “something that the Court will strike down.”

              “What I can get away with” is not a Constitutional standard.

        3. No, that was not the point of giving it to Congress. I don’t know why you won’t get off this hobby horse.

      2. Brett,
        I just don’t see how the First Amendment applies. Just looking at the Brandenburg standard, imagine that somebody says: “I am tired of Jews. It is time for America to look towards the Nuremberg Laws, and change the laws to allow us to lawfully remove the Jewish threat. Once they are taken care of, we sterilize all black women. Of course, we will change any laws and the Constitution before doing so. We will rid our society of the Jewish and Black Threat through peaceful means.”

        There is simply nothing illegal with that hateful speech. Nothing. It is fully protected by the First Amendment unless there are specific circumstances not applicable here (public employees, etc., said within schools, etc.).

        But if any President said that, I cannot imagine a unanimous impeachment and removal.


        1. 1: We *already HAVE* Nuremberg Laws — we’ve had them for 50 years — it’s called “affirmative action.”

          Remember that the Nuremberg Laws defined “racial purity” — they enabled the gas chambers, they did not authorize them.

          2: Margaret Sanger established Planned Parenthood to “exterminate” the Black race via abortion.

          QED Presidents essentially *have* said this, with impunity.

          1. Nuts are gonna be nuts.

          2. You need mental help.

        2. The problem with saying the First amendment doesn’t apply, is that you’re assuming they’re going to be reasonable. It’s only going to not be applied in obvious cases where almost everybody would agree.

          That’s not how it works.

          Consider that people on the left literally think a large fraction of the US population are morally equivalent to Nazis. That perfectly mainstream political views, such as that transgenders aren’t really changing their sex, or that racial discrimination is wrong regardless of the race you discriminate against, are hateful to the point of being beyond the pale.

          Or flip it around: On the right, advocacy of abortion is considered morally equivalent to, indistinguishable from, advocacy of infanticide.

          THAT’S the sort of thing you’d be seeing officers of the government impeached over. Not stuff practically everybody agrees is heinous, because people who hold very, very widely viewed as heinous beliefs are pretty darned rare, and don’t tend to get those positions in the first place.

          Once protected speech is accepted as a basis for impeachment, you’ll see people impeached for expressing commonly held viewpoints that are out of favor with Congress. Because the genuinely agreed to be heinous stuff doesn’t NEED suppressing!

          1. So lets lie about what the Constitution says, because the other side is so crazy/evil it’s the only way to control them?

            You do see where this kind of rationalization-via-demonization leads, right?

            1. I keep going back to this: Saying Congress is bound by the Constitution doesn’t mean any given issue is judicable. They have an independent obligation to uphold the Constitution.

              Even when the courts won’t stop them from violating it.

        3. Per Son,

          I like Brett’s response to your point, but I really have to reject the premise here. The speech you hypothesize is awful – but I couldn’t invoke impeachment for that (if anyone chose to listen to me). I think the President might be forced to resign. His cabinet probably would, assuming they didn’t find him mentally incompetent under the 25th on their way out the door. But, no – moral unfitness is a far cry from high crimes and misdemeanors.

      3. If Joe Biden says tomorrow that he thinks it’s a shame that the Cold War ended with the dissolution of the Soviet Union, and that he plans to take all lawful measures to move the country toward a Soviet-style state, with as close ties to Russia and China as are possible, would Congress be authorized to impeach him for that?

        1. No, I don’t think Congress can impeach the President for declaring his intention to implement his party’s platform.

  3. Thank you for standing up for your principles, Josh.

  4. I have to disagree with the first amendment constraining impeachment. I have an example of speech that is clearly protected but also renders the president unfit for office.

    Suppose there is a state visit with the Queen of England. The president decides to insult her to her face with exceedingly vulgar language. This is clearly protected speech. Should the president be free to cause such diplomatic incidents without consequence?

    1. You would be cancelling his election.

      1. Election is a four year hall pass?

    2. ” Should the president be free to cause such diplomatic incidents without consequence?”

      Barrack O’Biden’s snubbing of Bibi N comes to mind as a specific example.

  5. All of this is mumbo-jumbo. There are no true standards. It is simply a mathematical calculation. If you can garner 218 votes in the house and 67 in the Senate–you get impeachment and removal.

    Any other than that and it is a show trial to make a political argument. That was clear with Clinton as it was with Trump, twice.

    1. Clinton actually lost his law license, though…

      1. But not because of anything that the Congress did or didn’t do

        1. He was stripped of his license by the Arkansas Disciplinary Board. Every Democrat on that board, having done business with Clinton, recused themselves. So had the Republicans, but they have no ethical sense, so they didn’t recuse. The result had nothing to do with any wrongdoing by Clinton.

          1. Nonsense, he lied under oath. I’m pretty sure that gets you disbarred anywhere.

            1. No it doesn’t. Give examples.

              1. President Clinton admits he lied under oath about his affair with Monica Lewinsky in 2001

                “WASHINGTON – President Clinton escaped indictment yesterday by surrendering his Arkansas law license for five years and admitting that he made false statements under oath about his affair with Monica Lewinsky.

                “I tried to walk a fine line between acting lawfully and testifying falsely, but I now recognize that I did not fully accomplish that goal and that certain of my responses to questions about Ms. Lewinsky were false,” Clinton said.

                But he went out parsing until the end, admitting to giving “false” answers – but not to lying.”

                It’s actually kind of amusing at this remove, watching Democrats insist Clinton was honest under oath, when he himself eventually admitted he hadn’t been.

                1. Captcrisis wasn’t “insisting” Clinton was honest, and wasn’t denying his law license was revoked due to him lying under oath. He was denying that lying under oath “gets you disbarred anywhere,” which in theory it should, but in practice it very, very rarely does by itself.

                  1. Correct. The response to my question was, as they say, “non responsive”.

                    Clinton wasn’t above the law, he was below it — he was penalized for things the average person isn’t. As oppose to our former admitted-groper-in-Chief.

          2. Technically, Clinton agreed to the suspension of his Arkansas law license as part of an agreement with the independent counsel that spared him a perjury prosecution after he left office.

  6. “ To say my position is frivolous is to charge with incompetence those who framed the Fourteenth Amendment.”

    And he will not stand here and listen to his critics badmouth the United States of America!


    1. I don’t think that as intended the First Amendment would apply to impeachment decisions. That said, it is probably a good idea from a policy standpoint to say we don’t impeach based on protected speech. But then again, it would also be a best practice not to impeach the President because of fake charges, witch hunts, or other personal dislike, so we are well beyond that point.

      The striking thing here is that the liberal establishment was more than happy to throw out free speech as a principle in their “get Trump” tirade. I think they are going to grow to regret not taking the more principled stance in the future.

        1. Yeah i don’t click links or work the internet for others….

  7. This is kind of wacky. Does anyone think that a President who said the following, repeatedly, and unrepentendly, could and should not be impeached:

    “Personally, I believe the ni**er should be returned to Africa, the Jew returned to Israel…and we’re not a revengent organization, but if our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance taken.”

    1. Oh, Queen Amalthea, are you familiar with Woodrow Wilson?

      There was no Israel at the time, but the Jews weren’t being treated well in academia at the time (by people like him) and it was Wilson who segregated the Federal Government (including Post Office) — it hadn’t been before.

      I have no doubt he said something as offensive as your example.

      1. Yes, and he (and frankly most other past US presidents) ought to have been impeached. The fact that it’s so difficult to find a past US president who wasn’t a terrible racist speaks volumes about your country.

        1. Good God, if we are talking about sins of the country, how many slaves did the Netherlands transport from Africa to South America and the Caribbean, how many wars did they fight to preserve or expand their slave trade?

          The Dutch also killed at least 150,000 indonesians after WWII trying to retain their colonial empire.
          Colonial atrocities explode myth of Dutch tolerance

          But I’m not saying the Dutch were particularly bad, but rather that they were pretty much the same as the French in Vietnam, or the British in India and Malaysia. But I will contrast the notable exception of the US granting Philippine independence promptly after the war in accordance (but delayed 2 years by WWII) with the Tydings–McDuffie Act (1934).

          What is particularly remarkable about the Dutch is their hypocrisy pointing fingers at others:
          “Dutch society seems to suffer from collective amnesia when it comes to the murderous behaviour of the soldiers who tried unsuccessfully to suppress the Indonesian independence movement in the jungles of Java and other islands almost 50 years ago. Young conscript soldiers, acting under orders, put numerous hamlets to the torch and butchered men, women and children.”

          1. The Egyptians, General. Don’t forget the Egyptians.
            400 years of reparations due Israel.

          2. Kazinski : “Good God, if we are talking about sins of the country….”

            Belgians too. They have more to answer for than just mayonnaise on their pommes frites and wheat beer. King Leopold’s Ghost was an ugly brutal read.

          3. O, I’m sorry, did I somehow give you the impression that I was keen to defend my country but not yours?

    2. The “should” is time-dependent. But the “could” is time invariant.

  8. “Congress could not impeach the President for exercising a specific power delegated by Article II. And Congress could not impeach the President for conduct that is expressly protected by the Bill of Rights.”

    Again, this is wacky. So if a President (Biden, Clinton, Trump, take your pick) pardoned, say, an Epstein and said of it ‘look, guy’s a friend and my friends don’t get treated like that, y’here? and let’s face it, those girls were 15 going on 30 and ain’t nothing wrong with that’ they couldn’t and shouldn’t be impeached?

    1. You raise a lot of troubling questions, starting with the fact that those 15-year-olds (a) weren’t blushing virgins and (b) Muhammad’s fourth wife was only 9-years-old. 15-year-olds routinely get married, even in the US, and while what Epstein did was wrong, I have a hard time calling those girls “victims.”

      It’s the same thing with drugs and I think it is long past time for some “tough love” and stop the victimhood mentality. And where the hell were these girls parents?!? Why is no one asking that?!?

      And then what if a President said that “Epstein’s activities were vital to national security” and pardoned him on that basis? What could you say?

      Do not forget that the first case was essentially “broomed” — and other than an intrepid reporter with a newspaper backing her, he’d have gotten away with it.

      1. And then there was Bill Clinton and Maurice Larry Lawrence…

      2. while what Epstein did was wrong, I have a hard time calling those girls “victims.”

        The absolute state of modern conservatism, folks.

  9. The Constitution does not expressly say the impeachment power is constrained by anything. That is where things end for me. Congress can impeach for whatever they want.

    1. On the contrary, it says that impeachment is for “high crimes and misdemeanors”, and that Senators, when sitting for impeachment, “shall be on Oath or Affirmation”. (Which is something people in the founding era, unlike today, took very seriously.)

      This sillly Trumpist line that “congress can impeach for whatever they want”, which has suddenly become all the fashion (as if it is even relevant to a president who did what Trump did), couldn’t be further from the truth. If you don’t believe me, read what Ken Starr said about it:

      1. It is not a “Trumpist line” because that is what the Democrats were essentially saying to justify their impeachments.

      2. The problem is that “high crimes and misdemeanors” is an undefined term. Congress can cram literally any behavior into that bucket. They could say that wearing a green tie on a Tuesday is a “high crime” and impeach on that basis. That doesn’t mean it would be a smart idea but there is nothing that prevents it.

        By the way, you’re linked article barely quotes Ken Starr at all and doesn’t address anything about theoretical limits on the standards for impeachability.

        1. It’s not a term without history and contemporary understandings.

          1. The history and contemporary understandings of the phrase are interesting but non-binding. They can help define what Congress should do but they place no limits on what Congress can do regarding impeachments.

      3. I agree with your take on the Constitution, but what makes you say it is a “Trumpist line?” If anything, the Trumpists were arguing, for various reasons, that Congress could not impeach Trump.

        1. …and they were simultaneously also arguing (both times) that what Trump had done was no big deal, and that the House’s decision to impeach him anyway suggested that they had applied a ridiculously low bar for impeachment.

  10. I look forward to seeing more instances of your principled stance in favour of untrammled executive discretion now that there is a Democrat in the White House!

    1. You mean a usurper who rigged an election?

      1. Nuts are gonna be nuts.

        I mean, really, here’s what you guys who are Trump adjacent are stuck with, nuts like Jimmy still yelling ‘we were ahead at first, but then behind, this is unpossible, rigged!!!!’ What’s been laughed out of so many courts by even Trump judges and laughed at by so many otherwise conservative intellectuals. It’s just yee-haws arguing on the level of someone who doesn’t understand the basic rules or general trends of what they’re talking about.

        1. or you could just saying “hey rigging that election was so easy, and Big Tech helped us cover it up, why don’t we just do this every election???!!!!”

          1. “Hey, we were ahead but then behind, election was teh Stolen!” Lol.

            1. Then what is it with all the dead people voting…?

              1. “The ball clearly went in after the clock struck zero, must be unpossible fraud!”


                1. I would like to be able to consult something authoritative that was subject to the rigors of debate and public scrutiny but alas we have nothing like that concerning the election since our overseers opted instead of censorship and oppression.

                  1. “I can’t find any proof of what I believe, which means the truth must be being hidden through censorship and oppression!” It’s not that your belief is wrong. No, it can’t be that. Must be a conspiracy.

                    1. But it is clearly a conspiracy, a well known one, by Big Tech and other players to silence any dissent when it comes to questioning the election. They are outright about this and in fact wear it as a badge of honor.

                  2. Jimmy the Dane : (rigged election gibberish)

                    Dupes gotta be duped. Marks exist to be taken for a ride. There’s a sucker born every minute, so we all know the precise moment that Jimmy came into the world.

                    1. Six months before the election, Trump tells the chumps he’ll claim fraud if he loses. He has a big smirk on his face because he’s certain his supporters are idiots.

                    2. Three months before the election, Trump tells the chumps he’ll claim fraud if he loses. He’s not taking any added precautions as if he actually believes this; he’s just prepping his dupes to be conned.

                    3. One month before the election, Trump tells the chumps he’ll claim fraud if he loses. After all, he could shoot a stranger on Fifth Avenue and all the docile sheep will fall perfectly in line. His supporters will believe ANYTHING.

                    After the election? Trump says ……… fraud.

                    His supporters howl; they rage; they weep tears of bitter anguish; they wail with inconsolable grief; they rant; they riot.

                    Trump just smirks.

                    1. It is pretty fresh to claim those who question the election are “marks” when liberals got ridden like an old plow horse all the time by their overseers.

                      1. Media makes up completely false theory that if Trump loses the election he will become a dictator.
                      2. Right before the election media scares all liberals into thinking minority vote is being oppressed.
                      3. Scared liberals run to the polls .
                      4. Question arise with how votes are counted and the media responds with the biggest censorship operation since maybe World War 2. Hmmmmm…..?
                      5. Liberals, instead of being actually worried about the state of the Republic, mimic what their overseers tell them to say.

                      Yeah, so…..who is the real “mark” here….?

                    2. Jimmy the Dane : Yeah, so…..who is the real “mark” here….?

                      Jimmy, I’m not the one regurgitating crudely false bullshit here, you are. And the cause of this spectacle (and your degradation)?

                      Your day-glo orange deity programmed you. He has you repeating nonsense the smallest child could see though. You’re like some wind-up doll repeating the same empty phrases. Twist the key and: Dead people voting! Conspiracy! Oppression!

                      All because a huckster conman prepped you months before the election – just to play the fool. God alone knows how you’ve fallen in this rut of repeating obvious stupid lies. I guess (to paraphrase Star Wars) Trumpism can have a strong influence on the weak-minded……

      2. No, one who found a creative way around the 22nd Amendment.

        There is a reason why I call him Barrack O’Biden…

  11. The Republican Party and real Americans should begin their reply to the lawfare of the Democrat Party. I support cancel culture, the purges of these cultural Commies should begin.

    Start with the IRS. The slightest viewpoint discrimination in any non-profit is indoctrination, and violates the promise of education in exchange for their tax exemption privilege. Education requires the presentation of all aspects of a subject. End all government exemptions, grants, subsidies, and supports of these cultural Commie agencies, on the spot.

    All cultural Commie employees of these agencies must be fired. If you want a cultural Commie indoctrination camp, do it without tax payer support.

    1. As I said, nuts are gonna be nuts. This is who you’re adjacent to.

      1. What a tired, lame argument from the KGB Handbook you found in the trash, to call dissenters mentally ill. Are you a cultural Commie?

        1. Pretty lame, David.

        2. Post wrongthink on the internet and next thing you know the police show up at your door with a “red flag” warrant taking your guns and you because of a so called mental illness….

          1. Jimmy, hold that thought! It’s over-wrought, paranoid, and completely unrealistic. But maybe there is something there you can build on. Apparently without noticing, you just had the constructive insight that there could be some self-restraint regarding what you choose to publish world-wide. Try to expand on that part, and see where it leads you.

  12. Whether or not frivolous, the argument has some surprising and troubling implications. Suppose President A states that he or she believes that the Union should dissolve, or that the no should be permitted to sit in the House or Senate if Jewish or Catholic. The words are protected speech. Aren’t you committed to the view that impeachment is improper, i.e., contrary to Constitutional powers of Congress in these cases? Or President B repeatedly and publicly accuses Senator McConnell of sedition or Satan worship.

    1. Sure, I’m not only committed to that view, I’m comfortable with it.

      Why is it outrageous for a President to suggest that the Union should dissolve, so long as they advocate doing so by some democratic process, rather than just executive fiat?

      Members of Congress have already suggested that certain not at all exotic religious views should be a disqualification for being in the judiciary. Were they expelled from Congress? Even censured? Nope.

      The problem, as I pointed out above, is that you’re not likely to see this applied to speech that’s virtually universally condemned, such cases are remarkably rare. It would be applied to speech that the current majority thinks ought to be universally condemned, but is outraged is actually quite widely considered reasonable.

      They’ll punish it in an effort to MAKE it unpopular!

    2. Impeachment is for high crimes, and misdemeanors. Those require an actus reus. What is the actus reus in saying someone should be excluded based on race or religion? Political advocacy speech is immunized. Conspiracy and solicitation are acts and speech.

    3. I don’t know why people think this is such a great argument.

      Yes, the President can do all kind of silly, outrageous and/or immoral things that do not rise to the level of “high crimes and misdemeanors.” The Constitution does not provide a solution to every problem under the sun.

      A president who did what you did, at least today, would be roundly mocked and lose all credibility and ability to deal with the political system. His party would likely disown him, for fear of being trounced in the next election. That’s the remedy.

      1. Yes, the President can do all kind of silly, outrageous and/or immoral things that do not rise to the level of “high crimes and misdemeanors.” The Constitution does not provide a solution to every problem under the sun.

        This is not the law.
        Are you disagreeing with Nixon v. US about what the law ought to be?

        1. That case does not contradict anything I wrote. Try again.

  13. Prof Blackman,

    You’ve nailed it. A lot of first principles has become mightily inconvenient when it involves the pursuit of Trump and others associated with him.

    FARA violations used to be a slap on the wrist. As soon as Michael Flynn was involved suddenly those violations became existential threats to democracy.

    Incoming presidential teams talked with foreign countries, but suddenly when Michael Flynn communicates with a foreign ambassador, it’s a violation of the Logan Act and thus an existential threat to democracy.

    Everyone’s innocent until proven guilty… unless you’re a Supreme Court Justice nominated by Trump. Then you’re guilty until proven innocent.

    Or you’re the President, and a Special Counsel essentially rewrites the obstruction statutes in order to criminalize Article II powers.

    Prof. Blackman, I think we need a term to describe this distortion of our laws. I’m a fan of the “Trump Exception”.

  14. Your position is frivolous.

    1. Just to be clear, your position is that Congress could have impeached Harry Truman for calling it a “Do Nothing Congress.” And you are fine with that.

      1. Yes, the Congress can do all kind of silly, outrageous and/or immoral things via the impeachment power.

        The Constitution does not provide a solution to every problem under the sun.

  15. O farsighted Josh
    Your argument is quashed.
    Tweet nukes to states blue?
    “It’s in Article II!”

    1. Bad doggerel with even less sense.

      1. I told Josh why he’s wrong. Now tell me why I’m wrong.

        1. nukes has nothing to do with the real world. it is just gross exaggeration on your part.
          The doggerel is just bad – my opinion as a published author of poetry in two languages.

          1. I don’t think you understand the concept of “hypothetical”. I also don’t think you went to law school. I also don’t think those two languages included English.

            1. As your hypotheses are wrong, it is you who don’t understand what hypothetical means.
              Your insults indicate lack of content in your message.

              1. A hypothetical can’t be “wrong”. It’s a hypothetical. And if you are against insulting people there would hardly be a single comment from you on this blog (instead of hundreds).

  16. “I hope that this distance provides an opportunity for calm reflection on the legal arguments raised in those proceedings.”

    You were then, you are now, and forever will be incapable of “calm reflection” on any issue pertaining to Donald Trump, because you are totally in the bag for him. Every word you write regarding Trump is propaganda, pure and simple. When it comes to Trump, you are not a law professor; you are an advocate, and an advocate without honor, happy to lie on behalf of your master. No one should believe anything you say regarding Trump, and, of course, be skeptical of anything you say on any other subject as well.

    1. All of that work as Trump’s lapdog, and he didn’t even get a federal judgeship out of it. Sad!

    2. OK, you got the silly ad hominem argument out of your system.

      Now tell us, substantively, why he is wrong. If you are capable of that.

      1. Ilya Somin responded to the First Amendment argument in Feb. 8 op-ed in the Washington Post, which he also discussed on this blog. Ilya and other Volokh Conspiracy folks have responded to all of Blackman’s many “defenses” of Trump during both impeachment proceedings. If you’re bored, lawyer, do some research.

  17. Josh,

    Imagine this scenario:

    We have a US president who ran for office on the platform of peace with China.

    In the course of the presidency, the DOJ determines the Secretary of State has taken bribes from China.

    The Secretary of State resigns before they’re impeached and convicted. While the Secretary of State was accused, it is widely believed the president had no knowledge of this scheme and that the president has pure motives for wanting peace with China.

    The DOJ brings charges, tries, and convicts the former Secretary of State. They’re now awaiting sentencing.

    The DOJ has been trying to get the former Secretary of State to name names of other people in the government, academia, and industry who are taking bribes from China to act against US interests.

    The Secretary of State had indicated a willingness to name names in exchange for a shorter prison sentence and this is active negotiation.

    China, however, is not happy with the process and is threatening retaliation if the US government “forces” the former Secretary of State to defame the CCP and to lie about Chinese influence in the US. In fact, China has threatened a military response and the threat is deemed credible.

    The president, who wants peace with China at almost all costs, decides the best way for the Secretary of State to remain silent – and avoid a convict with China – is to pardon them.

    So the president issues the pardon and the former Secretary is free to go.

    The president acted within their full plenary constitutional power to issue the pardon and that power cannot he reversed.

    It’s also easy to see how this act cannot be criminal or considered obstruction of justice from a legal perspective.

    However, it would also make a lot of sense to Americans for the Congress to still impeach, try, convict, and remove this president for exercising this constitutional power in a constitutional way but in way that many would deem as against US interests. In fact, impeachment is the last check on the president’s power the Congress has to wield in extreme circumstances and when the president’s action are so concerning that they warrant an imminent danger to the country.

    1. That’s called impeaching over policy differences. Your hypothetical illustrates it perfectly.

      In a parliamentary system as they have in Great Britain, you would be correct.

      Our Constitution does not set up such a system. A president is democratically elected for four years, and that comes with all his policy preferences, whether you like them or not.

      1. Hamilton, and the US Supreme Court, both disagree with you.

        1. No, they don’t . Try reading them again.

          1. -Federalist 65:
            A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.
            That’s maladministration. That’s policy differences.

            And Nixon V. US allows Congress to impeach for policy differences. Sole power means sole power. You are appealing to another power; you need to distinguish Nixon.

    2. Nothing in your example rises to the level of impeachment, it’s just the President being a coward.

      But even worse, it’s a horrible example because accepting the pardon would negate the Secretary’s ability to claim the 5th, and allow them to simply be subpoenaed to testify under oath. Issuing a pardon in this situation is a horrible idea.

  18. “That is, Congress could not impeach the President for conduct that complies with the Constitution. And this limitation cuts in two directions.”

    The President has ultimate declassification authority meaning he/she can declassify anything – anytime – for any reason.

    If the President one day declassified CIA personnel records, nuclear capabilities (and vulnerabilities), or satellite systems – all perfectly legal, all perfectly constitutional – I’d damn want Congress to throw him/her out immediately.

    1. If the President one day declassified CIA personnel records, nuclear capabilities (and vulnerabilities), or satellite systems – all perfectly legal, all perfectly constitutional – I’d damn want Congress to throw him/her out immediately.

      A classic example of why hard cases make bad law.

      And in the fanciful parallel universe where a President would not only be inclined to do something so scorched-earth but would feel comfortable enough to actually do it, I suspect the problem at that point would be far beyond a simple 1A question and the “throwing out” part might not go quite as smoothly as you’re thinking.

  19. While this topic is not at all frivolous in the normal meaning of the term, I can’t imagine any court not dismissing it as frivolous, or at least “non-justiciable.” It only makes sense to me to raise such an issue if you’re proposing some way to turn it into a practical right, that is, one that the impeached person could actually use. Fat chance.

  20. Impeachment is a sham now. So in 2022 when the Rs take the house expect another one, this time for Dementia Joe. Maybe now that we’ve decided that ex-presidents can be impeached we’ll impeach Obama for spying on his political opponent.

    1. “So in 2022 when the Rs take the house”

      You seem more confident about the number of bigoted, superstitious, half-educated conservative voters available to Republican candidates than the record indicates.

      Our electorate improves — less bigoted, less backward, less religious, less rural, more diverse (less White) — each day. Electing Republicans becomes more difficult as cranky old clingers take their stale, ugly thinking to the grave and are replaced by better, younger Americans.

      Trump lost by more than eight million votes. He also lost the House and Senate. Run him again, Republicans . . . please!

    2. wreckinball logic:

      I think something is a sham but I have the authority to do, I’ll continue the sham.

  21. The question of whether an action is reviewable by another body is wholly separate from the question of whether it is constitutional.

    The Supreme Court justices could, if they wanted to, always vote to summarily affirm all convictions of political opponents of the president appointing them while summarily reversing all convictions of supporters. Their actions would not be subject to review bu any other body. Yet is this proof that there actions would be constitutional? It is not.

    The Framers had in mind members of Congress who would act with the good of the country and the requirements of the law in mind, not solely the interests of their party or faction.

    Benjamin Franklin, asked what kind of government the constitutuonal convention had come up with, answered “A Republic, if you can keep it.”

    The fact that very few members of Congress measure up to these ideals and the strategic interests factional warfare regularly seem to supercede the both the national good and the constraints of the law, is evidence that we are not fit to keep the Republic, and hence it may not long endure, as Franklin warned.

    The fact that certain things the House or the Senate do are not reviewable by the courts is not evidence that whatever they do on these matters is right. Or Constitutional. It is only evidence that the Framers thought Congress the body most suitable for reposing their and the Nation’s trust.

    Trust can be betrayed.

    We see all too much evidence of this lately.

    1. If the judgment of the constitutionality of an impeachment is subjective, how is not the case that whoever the Constitution says has the last say makes the authoritative determination? That is, if Congress says an impeachment is constitutional, it is constitutional.

    2. The Supreme Court justices could, if they wanted to, always vote to summarily affirm all convictions of political opponents of the president appointing them while summarily reversing all convictions of supporters. Their actions would not be subject to review buy any other body.

      The President’s pardon power is a power of review over the Supreme Court’s criminal cases.

  22. It is not frivolous to say that Congress must identify a high crime or misdemeanor to impeach. True, that is not difficult, every impeachment to date can be justified on that ground.

    Saying that Congress cannot impeach for conduct permitted by the Constitution is 100% frivolous. Unlike the first commenter, I would not wish Prof. Blackman good luck in finding other employment if it is as a professor of law. He may be more qualified to serve as a shameless spokesperson for Senator Hawley or Cruz, or Congressman Gaetz or Gosar.

    1. The constitution enumerates two kinds of explicitly criminal conduct which qualify for impeachment, treason and bribery. There may be tacit implication there that other ordinary crimes (as opposed to high crimes and misdemeanors) might not be impeachable.

      There has been notable disagreement about the meaning of, “high crimes and misdemeanors.” Maybe more disagreement than necessary.

      The language of the founding era was not far removed from a similar term, “high treason.” That did not mean what the constitution’s crime of treason means. At the time, it meant, specifically, disloyalty to the sovereign, from anyone who owed that loyalty. Practically any conduct which a king or queen wished to punish could qualify. What made it, “high treason,” as opposed to ordinary, “treason,” was that it affronted the sovereign, instead of some other lesser party to whom the accused owed loyalty.

      Use that as framework for interpreting constitutional language, and things get much easier. High crimes and misdemeanors would not necessarily be crimes or misdemeanors at all in the usual sense. They would be offenses against America’s joint sovereign, the People, or against American constitutionalism, by office holders sworn to uphold loyally those values.

      That could leave numerous actual crimes outside the scope of impeachable conduct. It could likewise mean numerous acts which are not crimes are impeachable. And it could all be understood systematically, and in a way which would serve American constitutionalism with more clarity and purpose than the present muddle does.

  23. Because the government is generally unable to fairly draw the line between speech worthy and not worthy of protection, the First Amendment protects unworthy speech in order to keep worthy from being punished. But in the case of impeachment, the punishment is limited to holding political office which is far less consequential than criminal or other civil punishments. Thus, we should not be as worried about punishing worthy speech and let the political process punish those who go too far.

    1. The opposing argument is that impeachment of an elected office holder isn’t just taking away from them an office they had not particular legal right to, it is also taking away the voters’ power to select that particular person to occupy the office.

      And THAT is a very weighty matter indeed.

      1. Not when it is TRUMP!!!!!

      2. In the case of future disqualification, yes. And perhaps some greater speech protection is needed. But, I’m not sure if the voters’ interests in a particular person are as great as they would face as individuals for criminal or civil punishment of the same speech. Also, your argument doesn’t apply as strongly to removing someone from office without future disqualification.

      3. Brett, think that through. The impeachment power is political. That is founder-speak for saying it is the People doing the impeachment. To suggest the People doing an impeachment are somehow dis-serving the People as voters doesn’t make much sense. If the People want the guy out of office, maybe it’s safe to conclude the People don’t want the guy in office.

  24. For the final time: “Congress shall make no law…”

    The proceeding happens under Constitutional auspices, not legislative procedures, and results in no law. A trial in the High Court of Impeachment will sometimes need to render a verdict that places some lawful limits on what a President can say while in office. (And as we now have learned, it would also be well advised to limit any nearby free assembly of citizens wishing to petition their government.)

    Mr. D.

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