Trump's Impeachment Defense 'Misses the Point Entirely': First Amendment Experts
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Nearly 150 Constitutional Scholars Reject Trump’s Defense: ‘The First Amendment Does Not Apply in Impeachment Proceedings’

WASHINGTON, DC - DECEMBER 03: President Donald Trump speaks about the election after presenting the Medal of Freedom to former college football coach Lou Holtz in the Oval Office of the White House on December 3, 2020 in Washington, DC. Holtz is best known for his time as head coach of University of Notre Dame's football team, winning a national championship in the 1988 season.

Former president Donald Trump has no First Amendment defense in his upcoming U.S. Senate impeachment trial, according to nearly 150 constitutional scholars.

In an open letter released Friday, dozens of law professors and First Amendment litigators sought to disabuse the 45th president and his defense team of the suggestion that the First Amendment even applies to his case soon to come before the upper chamber.

“The First Amendment is no bar to the Senate convicting former president Trump and disqualifying him from holding future office,” the letter reads, before explaining that the authors have numerous legal and political differences but are nonetheless united in their understanding of the law on this point. “The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for president Trump.”

On Tuesday, Trump filed his official response to the Democrats’ impeachment brief, outlining a planned First Amendment defense.

“Like all Americans, the 45th president is protected by the First Amendment. Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation,” the filing noted. “If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”

By invoking the First Amendment, the defense signaled they intend to fight the charges as if the proceedings are are subject to legal standards and precedents.

But, as Law&Crime has previously noted, impeachment trials are not actually legal trials. They are constitutional proceedings that imitate the trappings of law but are ultimately guided by politics above all else. The scholars describe the process in their letter as “constitutional” and moved to put the kibosh on the defense’s line of thought.

“The First Amendment limits the government’s ability to make it unlawful to engage in speech, practice a religion, peaceably assemble, or petition the government,” the letter notes [emphasis in original]. “Thus, when lawyers say that a defendant established a First Amendment defense in a court case, what they mean is that the defendant demonstrated that the government could not make their conduct unlawful.”

“But Congress’s power to impeach is not limited to unlawful acts,” the letter goes on. “Instead, federal officers can be impeached for lawful conduct, and violations of an officer’s oath of office can constitute impeachable “high Crimes or misdemeanors” under the Constitution even if no law has been violated.”

The scholars include the following examples:

[F]ederal judges can be—and have been—impeached for presiding over trials while intoxicated. That is not a federal crime, but it is a violation of the judicial oath to faithfully and impartially execute a federal judge’s duties. Likewise, a president or a Secretary of Defense could be impeached for not defending the United States against a foreign attack. Again, that is not necessarily a violation of any criminal law, but it is certainly a violation of an oath to defend the United States Constitution. And for the same reason, a President could be impeached for publicly renouncing their oath “to preserve, protect, and defend the Constitution of the United States.” Imagine a president who publicly announces, “I no longer promise to preserve the Constitution.” Such a declaration would not be illegal—indeed, the First Amendment would almost certainly bar Congress from making it illegal—but the president could still be impeached for betraying the oath of office.

“[A]sking whether president Trump was engaged in lawful First Amendment activity misses the point entirely,” the letter continues. “Regardless of whether president Trump’s conduct on and around January 6 was lawful, he may be constitutionally convicted in an impeachment trial if the Senate determines that his behavior was a sufficiently egregious violation of his oath of office to constitute a ‘high Crime…or misdemeanor’ under the Constitution. If so, he can be convicted and disqualified from future office regardless of whether he would have a First Amendment defense in a subsequent criminal prosecution.”

The seven-page letter goes on to make two additional arguments.

The second argument in the alternative is that even if the First Amendment applied to impeachment proceedings, Trump can still be found guilty and removed based on his violation of the presidential oath of office because such a violation would be wholly unaffected by the basic thrust of the First Amendment–which prohibits the government from criminalizing certain enumerated actions.

“The First Amendment protects the freedoms of speech, press, religion, assembly, and petition; it does not grant the president the freedom to engage in a willful dereliction of duty,” the letter explains.

The tertiary argument in the alternative is that even if the “principles” of First Amendment law can be said to apply, Trump is simply guilty of the actual crime of incitement which is described in landmark Supreme Court case of Brandenburg v. Ohio. The opinion, relied upon by U.S. courts to this day, holds that speech can be prohibited if it is both: (1) “directed at inciting or producing imminent lawless action;” and (2) “likely to incite or produce such action.”

That standard, it should be noted, is extremely hard to meet and successful incitement prosecutions are a rarity in U.S. law.

“In this context and under the circumstances, many of us believe there is a powerful case that even under the Supreme Court’s narrow standards for when speech inciting violence is not constitutionally protected, President Trump’s words and conduct were unprotected,” the letter said.

On Thursday, Trump’s impeachment defense attorney David Schoen further crystallized the defense’s intent to move forward by fighting impeachment like it is a function of law—taking issue with the Democrats’ plan to draw adverse inferences if the 45th president refuses to testify under oath.

The open letter advised the Senate not to give credence to the First Amendment defense raised by Trump lawyers.

“[W]e urge the Senate not to base its decision on the erroneous understanding of the First Amendment urged by President Trump’s lawyers,” the scholars conclude.

Read the full open letter below:

[image via Doug Mills-Pool/Getty Images]

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