Simply put, President Trump has no free speech defense. President Trump is not a private citizen, free to say whatever he wants without accepting the consequences or recognizing the effects it might have on our system of government. As the head of the Executive Branch, his words can shake the nation—and so he is held to a higher standard than private citizens. Moreover, when it comes to the impeachment power, the question is not whether the President was free to say what he said. It is whether he has engaged in conduct that threatens the constitutional order. President Nixon engaged in speech when he ordered the cover-up of his crimes. President Trump engaged in speech when he sought to extort President Zelensky of Ukraine. Federal judges have engaged in speech when they abused their position. Yet neither the House nor the Senate have ever suggested that just because an impeachable offense involved speech, it cannot support impeachment unless some First Amendment standard is met.
Accordingly, the judgment for Congress to make is not whether President Trump had a free speech right to say what he said on January 6, 2021. It is whether that conduct qualified as a high Crime and Misdemeanor under the applicable constitutional standard. For the reasons set forth above, there can be no doubt that it did: inciting a mob to assault the Capitol while Congress meets in Joint Session to count the electoral votes in the presidential election results is plainly an impeachable offense.
- III. The Need for Immediate Consideration of Impeachment
President Trump’s behavior requires immediate congressional action.
First, President Trump poses an imminent threat to the safety and security of the United States. His continued presence in office is a clear and present danger to the United States. He has interfered with the peaceful transition of power and his actions show that he will continue to do so unless removed. He incited a mob to violence in order to try to overturn an election he lost and to disrupt the Joint Session of Congress that would confirm the result. President Trump not only failed to stop his supporters from invading the Capitol, he encouraged and supported their efforts. As Congress came under threat, his responsibility was to turn the mob away. But did not instruct supporters to call off their attack. Instead, as a sworn federal law officer lay injured and dying, and government officials raced to protect themselves from the armed mob, President Trump continued his attacks on Vice President Pence for failing to overturn the election results, spread false claims that he had won the election, called Members of Congress to lobby them to continue to object to the counting of electors in States won by President-elect Biden, and reassured the insurrectionists that they were “loved.”
Since then, instead of expressing remorse about his conduct, he continues to deny responsibility for the consequences of his actions, justifying the mob’s behavior through his false claims of election fraud. Recent events may well have emboldened President Trump’s supporters to continue their efforts to disrupt the transfer of power before or on January 20, 2021. The risk that President Trump will once again support this disruption to the peril of our security and democracy is too great to leave him in office for the remaining days of his term.
Second, it is equally important that Congress send a clear message and establish a precedent that the President’s conduct subjects him to impeachment and removal from office. That message
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