Trump’s conduct need not have violated any federal criminal statutes in order for them to constitute “high Crimes and Misdemeanors” under the Constitution.
Nor is the Supreme Court’s decision in Brandenburg v. Ohio relevant to the question of impeachment.[1] In Brandenburg, the Court clarified that the First Amendment allows the criminal punishment of incitement. It then limited such liability to cases where “advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[2]
To apply Brandenburg here—and to insist that President Trump cannot be impeached unless the Brandenburg test is met—would be to commit two fatal category errors.[3]
The first error involves a misstatement of First Amendment law. The Free Speech Clause guarantees that private citizens can engage in certain forms of expression without government regulation or prohibition. But it applies very differently to speech by government officials and public employees. By virtue of his high office, President Trump is no ordinary citizen. He occupies a position of public trust and directs the operations of the Executive Branch. As a high-level public official, the President is subject to different rules than private citizens and can be held accountable for his expression (including all expression relating to his office) in ways that they cannot be. That is a basic and well-established precept of First Amendment law. In fact, as Professor Ilya Somin observed, “Donald Trump himself has fired numerous cabinet officials and other subordinates because they expressed views he didn’t like.”[4]
The second and more fundamental error involves a misunderstanding of the Impeachment Clause. For many of the same reasons that impeachment does not necessarily turn on criminality, it is not governed by a standard that defines when a person can be held responsible civilly or criminally for their speech. Impeachment is about preserving the Nation from a threat to the constitutional order, not imposing punishment. Nowhere did the Framers suggest that a President must be allowed to remain in office if his abuses involved speech that would otherwise be shielded from criminal regulation by the First Amendment. This would be a strange and irrational limitation: Presidents would be free to openly advocate the overthrow of the United States government, or the adoption of fascism, and Congress would be powerless to remove them on that basis. Moreover, given that many prior impeachable offenses have involved at least some conduct that might rank as protected speech, applying a rigid First Amendment rule in this field would risk obfuscating Presidential conduct—whether involving speech or not—that menaces the American democratic system.[5]
- ↑ 395 U.S. 444 (1969).
- ↑ Id. at 447.
- ↑ Constitutional scholars have recently elaborated on these category errors. See, e.g., Jonathan H. Adler, Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol, The Volokh Conspiracy (January 8, 2021); Ilya Somin, The First Amendment Doesn't Protect Trump Against Impeachment for his Role in Inciting the Assault on the Capitol, The Volokh Conspiracy (January 8, 2021).
- ↑ See id.
- ↑ H. Mis. Doc. No. 42, 40th Cong. (1868); H. Res. 755, 116th Cong. (2019).
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