Presidential Free Speech and the Congressional Impeachment Power
There has been an active debate on the pages of the Volokh Conspiracy over whether the First Amendment should be understood to give President Trump any shelter from the article of impeachment adopted by the House of Representatives in the aftermath of the storming of the Capitol. Josh Blackman and Seth Barrett Tillman have offered the president some solace. Ilya Somin and Jonathan Adler have not.
I find this issue particularly intriguing both because I am intrigued by most things related to the impeachment power and because this was actually my entry point into thinking about impeachments. I began studying impeachments while working on my dissertation and was drawn to the impeachments of Justice Samuel Chase and President Andrew Johnson. Both of those impeachments involved questions regarding the speech of high government officials and the extent to which they could be held accountable by Congress through the impeachment power for such speech. More recently, I have also become quite interested in free speech issues in American society more generally.
Over at Lawfare, I weigh in with my own contribution on the side of Somin and Adler. Laying aside the question of whether Trump is guilty of the criminal offense of incitement (I’m inclined to agree with those who argue that he is not), constitutionally protected speech is not beyond the scope of what might be a high crime and misdemeanor in a court of impeachment. This is, I believ
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