The majority staff of the Judiciary Committee of the House of Representatives has issued a report to accompany the resolution for today’s second impeachment of President Donald Trump for incitement of insurrection. Earlier this week, my former colleague Alan Dershowitz argued in Newsweek that First Amendment protections against a criminal conviction for incitement to riot make impeachment over the president’s role in last week’s events at the Capitol unconstitutional. I want to explain why this claim carries no weight.
Dershowitz wrote that Trump’s speech last week, “disturbing as it may have been—is within the core protection of political speech.” He pointed to Brandenburg v. Ohio, where the Supreme Court ruled that the government cannot prohibit speech unless it is specifically “directed to inciting or producing imminent lawless action” and “is likely to incite or produce such action.” (In Brandenburg, the Court found that a short speech by a Ku Klux Klan leader at an Ohio farm saying that there might have to be “some revengeance taken” and referencing a march to take place later in Washington, D.C. was protected by the First Amendment from a state charge of “criminal syndicalism” because any lawless action incited was not imminent.)
There are a number of ways that the president’s speech, in which he told his supporters that “if you don’t fight like hell you’re not going to have a country anymore” and to march to Congress at that very moment in the hopes of disrupting the Electoral Vote count, differs from the facts of Brandenburg. But more importantly, the question at the moment isn’t whether the president could be charged with incitement to violence in criminal court. It’s whether the president can be impeached for his actions, both arising from the speech and from his actions (and inactions) as the crowd stormed the Capitol and he was implored to help. It feels profoundly cramped to take the facts of last week and the impeachment arising from them and respond with a doctrinal application of Brandenburg.
Suppose these facts, based on reporting around the events, bear out at trial:
The president gave a speech demanding that his vice president immediately undertake an unconstitutional act for the purpose of keeping Trump in office, specifically by preventing the proper tallying of the Electoral College votes by a Joint Session of Congress. He incited the crowd to riot, even if Brandenburg might find the First Amendment’s imminence requirement not satisfied for criminal prosecution purposes. Some outside the Capitol erected gallows, while others within the Capitol sought to find the vice president and members of Congress so that they could be harmed, and possibly even hanged. The entire rest of the top of government, apart from the president, was in the Capitol at the time: both Houses of Congress and the vice-president. Had they been massacred or otherwise incapacitated, the president would be, as a king, able to fire any other officials at his pleasure who might defy him or seek to effectuate a court order against him.
As some members of Congress fled their respective chambers (that is, those who were not pinned down in the House Gallery and who therefore had to shelter in place for longer), they conveyed direct pleas for immediate help to the president, specifically in the form of asking the president to make a statement to his supporters calling for calm, and for him to send National Guard reinforcements to the overwhelmed Capitol Police. The president refused to act, because he was watching what was happening on TV and, as Josh Marshall summarizes, he liked what he was seeing. The Washington Post reported:
But as senators and House members trapped inside the U.S. Capitol on Wednesday begged for immediate help during the siege, they struggled to get through to the president, who — safely ensconced in the West Wing — was too busy watching fiery TV images of the crisis unfolding around them to act or even bother to hear their pleas.
“He was hard to reach, and you know why? Because it was live TV,” said one close Trump adviser. “If it’s TiVo, he just hits pause and takes the calls. If it’s live TV, he watches it, and he was just watching it all unfold.”
Even as he did so, Trump did not move to act. And the message from those around him — that he needed to call off the angry mob he had egged on just hours earlier, or lives could be lost — was one to which he was not initially receptive. (emphasis added) …
Meanwhile, in the West Wing, a small group of aides — including Ivanka Trump, White House press secretary Kayleigh McEnany and Meadows — was imploring Trump to speak out against the violence. Meadows’s staff had prompted him to go see the president, with one aide telling the chief of staff before he entered the Oval Office, “They are going to kill people.”
Shortly after 2:30 p.m., the group finally persuaded Trump to send a tweet: “Please support our Capitol Police and Law Enforcement,” he wrote. “They are truly on the side of our Country. Stay peaceful!”
But the Twitter missive was insufficient, and the president had not wanted to include the final instruction to “stay peaceful,” according to one person familiar with the discussions.
White House reporter Kaitlan Collins described her conversations with Trump officials on the 6th this way: “White House officials were shaken by Trump’s reaction to a mob of his supporters descending on the Capitol today. He was described to me as borderline enthusiastic because it meant the certification was being derailed. It has genuinely freaked people out.”
Matt Glassman recently reshared a quote from Federalist Paper No. 65, which emphasizes that impeachment centers on the abuse or violation of public trust.
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.
It’s hard to see what the president did as anything other than a fantastical, cartoonish abuse of the public trust, and of his oath of office, suitable to be judged by the Senate in the course of a trial for impeachment. Dershowitz’s argument appears to be that all this may be true — but the First Amendment still precludes impeachment. Which is a claim so powerful that it seeks to set aside most of the facts emerging from January 6th. But its power is then in conceding those facts to be true, but saying “nevertheless.” It amounts to saying: Indeed the president might have breached the public trust and violated his oath of office. In fact, he may have even been pleased to watch the violence being visited on his fellow government officials, violence released by his own words. And because he was happy he did nothing — when he was uniquely in a position to do something, either in offering calming, de-escalatory words to the crowd or in authorizing the National Guard. But, forget all of that: the First Amendment protections against a criminal conviction for incitement to riot make any impeachment unconstitutional.
If that sounds strange, it’s because it’s wrong. The basis of the impeachment is well beyond the speech the president delivered; his speech could be protected by the First Amendment for criminal liability purposes while still representing a grave breach of his oath of office suitable for impeachment and removal; and the context of his speech makes it much worse for criminal liability purposes than a KKK’er vaguely talking about “revengement” on an Ohio farm.
It can’t be that the solemn price for protecting our civil liberties against current and future abuses is that the president can incite a mob bearing huge flags with his name on them to storm the Capitol, kill a police officer, and further, not immediately tell them to stop or, as commander-in-chief, to refuse to send help. Rather, that would be a sure way to make a mockery of the civil liberties, and government of checks and balances, contemplated and secured by the Constitution and Bill of Rights.
Image: The U.S. Capitol stands on January 13, 2021 in Washington, DC. The House of Representatives is expected to vote to impeach President Donald Trump later today, after Vice President Mike Pence declined to use the 25th amendment to remove him from office after protestors breached the U.S. Capitol last week. Photo by Stefani Reynolds/Getty Images