If you’re following the upcoming impeachment trial and you hear the suggestion that President Trump was merely exercising his 1st Amendment free speech rights, know that this is unlikely to work, as Professor Keith Whittington explains on Lawfare:
At least some of the speech included in this article of impeachment would be constitutionally protected under the First Amendment if said by a private citizen. Some scholars have argued that, as a consequence, this speech cannot be a constitutionally valid foundation for a House impeachment or a Senate conviction, and that the president has a reasonable legal defense in his impeachment trial that his alleged actions were protected under the First Amendment. Even if senators are inclined to acquit the president, they should forcefully reject this line of defense.
The House can impeach and the Senate can convict an officer for engaging in lawful conduct. The constitutional impeachment standard of high crimes and misdemeanors is not limited to criminal conduct under ordinary criminal statutes—though many ordinary criminal acts, if committed by a federal officer, may be impeachable. The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate.
Or, in my mind, if a public official uses speech to undermine the very office they occupy, the 1st Amendment offers no refuge during a subsequent impeachment trial based on that speech. An impeachment is not a criminal proceeding, it’s a collective political judgment of the conduct of an official.
Mind you, if President Trump had used “free speech” to betray to a national adversary certain national security details, it’s not beyond the realm of possibility that he could be arrested and bound over for a criminal trial – although an official in his position could argue that he holds the declassification power and therefore cannot be convicted. But this is to illustrate the difference. Just as President Clinton’s impeachment turned on the perception that he had lied – about a blowjob – to Congress, and most of the public thought it irrelevant, which in turn was reflected in the failure to convict, President Trump’s trial will – or would in a perfect world – turn on whether Senators believe his speech encouraged a mob to invade the US Capitol building.
And the 1st Amendment doesn’t come into play.
