Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol

I would like to offer a brief response to my co-blogger Joshua Blackman and Seth Tillman’s post arguing that Congress may not impeach and remove President Trump on the grounds of incitement for his remarks on January 6 preceding and during the electoral count in Congress. I think this claim is wrong both as a matter of existing law and original constitutional meaning.

As I understand their argument, it is that if Trump’s speech does not constitute incitement for First Amendment purposes, then Congress cannot impeach President Trump on grounds of incitement. I believe this argument is wrong, unless reduced to an irrelevant semantic claim.

Before explaining my reasons, let me be clear that I understand us to be talking about what it would be legitimate for Congress to do under the Constitution. In other words, could a member of Congress vote to impeach or convict the President on these grounds consistent with their constitutional oath. I add this qualification because I do not understand Blackman and Tillman to be making any claim that an impeachment and conviction on this basis would be legally invalid or challengeable in Court. After all, Congress, and not the courts, is the ultimate judge of what constitutes an impeachable offense. 

To start, I will assume, for the sake of argument, that nothing President Trump said this week would constitute actual incitement under existing First Amendment doctrine. That is, however awful and unpresidential his comments may have been, I will accept for the sake of argument that they did not pose a sufficient risk of inducing imminent lawless action of the sort necessary to sacrifice First Amendment protection. Would that mean he could not be impeached for those remarks? Not at all.

As others have explained at length (including my co-blogger Keith Whittington and Timothy Sandefur), a president may be impeached for lawful actions. The phrase “High Crimes and Misdemeanors” was never understood to be limited to actual crimes, whether at common law or as defined by the U.S. Code (the latter of which scarcely existed at the time). It has always been understood to include abuses of power and oth