Wednesday, January 13, 2021
Politics

Opinion | Trump’s Incitement Was Not ‘Free Speech’

Opinion | Trump’s Incitement Was Not 'Free Speech'
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The House has historically offered presidents such courtesies in its impeachment inquiries, ranging from the opportunity to have counsel present to proposing witnesses to appearing themselves (although they never have). But this case is different.

Most crucially, unlike in prior cases involving complex, covert schemes, here the House already knows everything necessary to charge Trump with an impeachable offense. He committed his high crime and misdemeanor live on camera—in plain view of the House, which was then ransacked and vandalized by a mob he unleashed to block its certification of the election results. Law enforcement officials have already arrested and charged well over 150 perpetrators of the violence at the Capitol; there is no reason for the House to hesitate in charging the man who incited it all.

Swift action is further justified—indeed, required—by the clear and present danger that the president poses to the nation. Trump spent months engaged in a desperate, lawless scheme to overturn the results of an election he lost. He then summoned his followers to Washington and incited violence that imperiled a coequal branch of government and the line of succession in the form of his vice president. While that insurrection unfolded, Trump inexcusably failed to defend the Capitol; since the attack, he has called his actions “appropriate” and expressed no remorse. With rumors of further violence by his supporters swirling through the country, and reports that he may self-pardon or engage in other abuses, Trump must not remain in office one second longer.

In light of these considerations, drawn-out procedures that would slow or stall the House proceedings are unjustified. As the House Judiciary Committee has explained in a detailed analysis, the facts and the law are indisputable—and the circumstances are dire. The president came dangerously close to a coup. He threatened the peaceful transfer of power. And when the House offered him a robust set of procedural privileges during the last impeachment, including the opportunity to have his lawyer present an argument and question witnesses in the House Judiciary Committee, he spurned those privileges out of hand (instead waiting for the Senate trial to engage with the impeachment process). There can thus be no doubt the House is authorized to act with dispatch in approving charges for trial in the Senate.

Tacitly recognizing as much, some Republicans have retreated to makeshift claims that Trump cannot be impeached because his speech at the rally was protected by the First Amendment. As the late Justice Antonin Scalia might say, that is pure applesauce. It fails on every level.

To start, it turns the First Amendment upside down: the Free Speech Clause exists to protect private citizens from the government, not to protect government officials from accountability for their own abusive statements. The Supreme Court has held that government officials and public employees enjoy substantially reduced First Amendment protection for speech relating to the performance of their official duties. As the saying goes, with great power comes great responsibility.

More important, any “free speech” defense gets the Impeachment Clause wrong. The articles of impeachment against Presidents Andrew Johnson, Richard Nixon, Bill Clinton and Trump (from just a year ago) all arose, in part, from statements they had made. Yet in none of these cases did anyone assert that the First Amendment barred impeachment. That is unsurprising. Impeachment does not inflict punishment or inhibit speech; rather, it is forward looking, protecting the nation from a president whose continuance in office threatens the republic.

Accordingly, even if Trump’s statements would not count as “incitement” under cases limiting the government’s power to punish private speakers, the House is fully authorized to find that Trump’s actions constitute a high crime and misdemeanor. It really isn’t a close question. Trump’s statements in fact incited the mob to besiege the Capitol—and were part of a broader effort to subvert the democratic process. If anything, the article of impeachment against Trump vindicates core First Amendment interests. The right to participate in our political process means little if the president can use violence and threats to overturn election results.

As a bipartisan majority of the House will recognize today, Trump must face immediate accountability for his constitutional crimes. The article of impeachment against him properly and lawfully states the charges. It is now incumbent on every member of the House to remember the oath they swore and to act bravely in defense of the Constitution.



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