Can President Trump be Impeached and Removed on the Grounds of Incitement?
[This post was co-authored by Josh Blackman and Seth Barrett Tillman]
Over the past four years, we have defended many of President Trump’s actions as a constitutional matter, while criticizing those actions as a policy matter. One of our first amicus briefs in the Emoluments Clauses litigation highlighted our position:
President Trump’s business activities may raise ethical conflicts under modern good governance standards, but they raise no constitutional conflicts under the Foreign and Presidential Emoluments Clauses.
Prior to the 2019 impeachment, Blackman wrote in the New York Times that President Trump, whose phone call with the Ukrainian President was motivated, in part, for “personal political gain,” still did not commit bribery or any other criminal offense, much less an impeachable “abuse of power.” Even where we supported the legal position of a politician whose actions we were critical of, our academic writings and court filings advanced a different facet of the public good. Our purpose, always, has been to educate: to teach the courts, and the public, about novel and difficult constitutional and legal questions of first impression. We were never concerned with the risks of public retribution, and we are still not. Nevertheless, we write this post after some personal reflection.
Both of us were shaken by the events of January 6, 2021. Over the past several days, President Trump has taken actions that heedlessly risked third-parties’ violating trespassing laws, the destruction of public property in and around the Capitol, and the ability of federal officials and civil servants to perform their legal duties. Yet, we again feel an obligation to hit the pause button, ever so briefly, to discuss continuing, permanent, and vital principles of free and democratic self-government. Here, we write, with most immediate relevance, to impeachment—albeit similar principles apply in the context of civil and criminal law as administered by Article III courts.
Before the sun had set on the nation’s capital, there were immediate calls for President Trump’s impeachment, removal, and future disqualification. The timing of the process was not particularly important. With about two weeks until President-Elect Biden’s inauguration, it is not likely that a fair investigation and trial can be held with an eye on removal from office. Even the Radical Republicans gave Andrew Johnson time to put on a defense. (The trial began on March 4 and concluded on May 16, 1868). Additionally, in the current rush to impeach Trump, the specifics of the articles of impeachment do not appear to be very important to some supporters of a renewed impeachment effort. Incitement! Sedition! Treason! When all else fails, nebulous allegations relating to “corruption” and “abuse of office” will suffice for some would-be impeachers. The details can be ironed out later.
Traditionally, the most straightforward path to impeachment would focus on an issue in which the facts were not in dispute. In 2019, President Trump’s decision to release the transcript of his telephone call with the Ukrainian President made the impeachment process much smoother. There were few disputes about material facts. We know what he said, and when he said it. The House’s primary duty was to decide whether those statements amounted to an impeachable offense. For that reason, and others, Speaker Pelosi and the prior House’s leadership focused on that specific issue in the adopted articles of impeachment. They excluded other draft articles which raised novel and complex questions of first impression, which then and even now continue to be litigated in the federal courts. The House did not adopt articles of impeachment focusing on obstruction of justice based on the Mueller Report or on the Emoluments Clauses.
Similar circumstances are present with a possible impeachment article relating to incitement: all of Trump’s statements are public. We know what he said, and when he said it. This House would merely have to decide whether his statements were impeachable.
We start with established free speech doctrine. Under current Supreme Court doctrine, Brandenburg v. Ohio (1969) is the governing standard. The government can punish speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” The key word is “imminent.” Encouraging people to commit some act of violence at some time in the future would not be imminent. “Imminent” means right now. And the incited activity must be “lawless.” Encouraging people to engage in lawful activity is not incitement.
In this post, we consider only two factual allegations with respect to incitement. First, on December 19, President Trump tweeted, “Be There. Will be wild!” Second, on the morning of January 6, Trump gave a speech on the White House Ellipse that stretched more than an hour.
Given the requirement of imminence, our view is that Trump’s December 19 tweet, about an event more than two weeks away, would not be sufficient under Brandenburg‘s incitement standard. The speech he gave the morning of January 6 on the White House Ellipse, however, presents a closer call. You can find the full transcript of his remarks here. We think the final two minutes of the speech are the most salient portions for an incitement analysis, starting at 1:35:00.
Our brightest days are before us, our greatest achievements still wait. I think one of our great achievements will be election security because nobody until I came along, had any idea how corrupt our elections were. And again, most people would stand there at 9:00 in the evening and say, “I want to thank you very much,” and they go off to some other life, but I said, “Something’s wrong here. Something’s really wrong. Can’t have happened.” And we fight. We fight like Hell and if you don’t fight like Hell, you’re not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans for our movement, for our children and for our beloved country and I say this, despite all that’s happened, the best is yet to come. So we’re going to, we’re going to walk down Pennsylvania Avenue, I love Pennsy
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