I would like to provide a quick reply to the post of my co-blogger Joshua Blackman and Seth Tillman, in which he argues that Congress cannot indict and remove President Trump for inciting his remarks on Jan. 6 before and during the election count in Congress . I think this assertion is wrong because of both existing law and its original constitutional meaning.
As I understand it, if Trump’s speech is not incitement for purposes of the First Amendment, Congress cannot indict President Trump of incitement. I believe this argument is wrong unless it is reduced to an irrelevant semantic assertion.
Before I explain my reasons, I want to make it clear that I understand that we are talking about what it would be legitimate for Congress to do under the Constitution. In other words, a member of Congress could vote to indict or convict the president on these grounds, which is consistent with his constitutional oath. I’m adding this qualification because I don’t understand that Blackman and Tillman are claiming that impeachment and conviction on this basis would be legally invalid or open to appeal in court. After all, Congress, not the courts, is the ultimate judge of what constitutes a criminal offense.
First of all, for the sake of reasoning, I assume that nothing President Trump said this week would constitute actual incitement under the existing First Amendment doctrine. That is, as terrible and unpresidential as his comments have been, I will accept, to argue, that they did not pose a sufficient risk of imminent lawless action as necessary to sacrifice the protection of the First Amendment. Would that mean he couldn’t be charged for making these comments? Not at all.
As others have explained at length (including my co-blogger Keith Whittington and Timothy Sandefur), a president can be charged with lawful acts. The term “great crimes and misdemeanors” was never understood to be limited to actual crimes, whether under common law or under the US Code (the latter barely existed at the time). It has always been understood that abuse of power and other acts that are illegal when committed by an official, even if they are legal. See, for example, Alexander Hamilton’s comments in Federalist 65. Whether or not Trump’s comments would be punishable under federal law is irrelevant to whether or not they might constitute a criminal offense.
But what about the first change? Does it matter if we assume Trump’s speech is protected? Not at all.
The fact that language can be protected when spoken by a private individual does not mean that it is immune from government sanctions. To see this point, just think about how the first change applies to public employees. The change does not generally protect the language spoken in the course of employment and even if A government employee participates in private speeches outside of the workplace for reasons of public interest. It can still be sanctioned if the government has interests that sufficiently outweigh the worker’s interest in free speech. For example, having a police officer giving an otherwise protected speech outside of the workplace may still result in that officer being fired if the speech interferes with the officer’s ability to do his or her job or call the officer in question. While racist speech can be protected, law enforcement agencies can still discipline officers for racist speech off-duty.
The point here is that the first amendment does not protect speech by government officials and employees as much as it does private speech, and the fact that the government cannot criminalize certain speeches doesn’t mean the government may not sanction government officials or employees for otherwise protected language. Should Congress conclude that the President’s utterances constitute an abuse of power, a violation of his responsibility, or a betrayal of his constitutional oath, it would be irrelevant that the same utterance, if made by a private individual, would be protected by the First Modification.
But Blackman and Tillman could answer that Congress can indict the president, but only not for incitement. The claim here seems to be that if Congress wants to use incitement as the basis for impeachment, it can only do so if the speech in question conforms to the definition of incitement under the existing First Amendment Act. If this means that Congress should just use another word, then that is a semantic claim with no real relevance, as Congress would still indict Trump over the same questionable remarks. But I don’t think even this semantic point has much power. Just as “great crimes and misdemeanors” need not be actual crimes or misdemeanors, “inciting” as a criminal offense need not have the same definition as “inciting” as used under criminal law or as amended. There is nothing in the Constitution or its history that would impose such a restriction.
And even if you were of the opinion that a speech without legal incitement was not final, why should the Supreme Court’s understanding of incitement in the 20th century take control? Why shouldn’t we consider the understanding of incitement to riot in founding? In relation to at least the threat of civil unrest, there is a serious argument that the understanding of the founding period accepts a broader definition of incitement than the current doctrine of the Court of Justice. And let’s not forget that we saw an impeachment of officials for speech that would be protected today, and one of the impeachment articles against Andrew Johnson concerned his irresponsible rhetorical excesses.
The bottom line, I believe, is that the first amendment does not limit the ability of Congress to indict and remove President Trump so as not to exclude him from his future office. I agree with Michael McConnell that “there is no doubt that it is a criminal offense to induce a crowd to interfere with the confirmation of the election results.” If members of Congress believe that Trump’s remarks this week represent and demonstrate behavior that poses an unacceptable threat to our institutions and a betrayal of his constitutional oath, they should act accordingly and swiftly. In doing so, they would act in accordance with their constitutional oath and not violate it.