A Reply to the House of Representatives’ Managers’ Reply Memorandum
[This post was co-authored by Josh Blackman and Seth Barrett Tillman.]
On Tuesday, February 9, 2021, the House Managers filed a Reply Memorandum. The Managers’ Reply Memorandum made six primary arguments concerning the First Amendment. Here, we will respond to these arguments.
First, the Managers’ Reply Memorandum referenced a recent letter signed by 140 academics. The Reply Memorandum asserted:
In the words of nearly 150 First Amendment lawyers and constitutional scholars, President Trump’s First Amendment defense is “legally frivolous.”
Blackman previously explained why the academics’ letter is problematic. The signatories take conflicting positions about how exactly (if at all) the First Amendment should apply to these impeachment proceedings. For example, the academics’ letter states:
“Many of us believe that the First Amendment simply does not apply here [in the impeachment context].”
Many? How many? Is many most? A majority? A plurality? A minority? The academics’ letter does not say.
Indeed, some of the signatories may in fact agree with our position about the relevance of the Brandenburg standard to the article of impeachment. What, then, was “legally frivolous”? Blackman explained:
The introductory section [of the academics’ letter] strikes a chord of unanimity. But it isn’t clear that all of the signatories agree on a single rationale of why a First Amendment defense would be “frivolous.”
It is not clear why the signatories believe a First Amendment defense is, in their view, “frivolous.” More importantly, it is not clear they all actually do believe it is “frivolous.” We expect that if there was no dissent among the signatories, the academics’ letter would have expressed that unanimity clearly. If there was dissent, then the academics’ letter should fully inform the reader as to the basis of that dissent. Instead, the Managers, and the press, only needed to quote the word “frivolous.”
Moreover, the academics’ letter fails to address important evidence that the First Amendment applies to impeachment proceedings. We have discussed the record from President Johnson’s impeachment trial. And our writings were very much in-line with what other scholars wrote prior to the events January 6, 2021.
Second, the Managers’ Reply Memorandum turns to the Johnson impeachment trial. The Managers wrote:
In fact, the Senate has confirmed that the First Amendment does not limit its power to convict in an impeachment proceeding. . . . No precedent supports President Trump’s contrary view. [Trump’s brief] cites the impeachment of President Johnson in 1868, contending that the Senate there established that a President cannot be convicted and disqualified based on his speech. But the Senate set no such precedent in President Johnson’s impeachment. As President Trump notes, one of the articles of impeachment [Article 10] charged President Johnson with insulting and denouncing Congress by “mak[ing] and declar[ing] … certain intemperate, inflammatory, and scandalous harangues … [which] are peculiarly indecent and unbecoming in the Chief Magistrate of the United States.” While some Senators expressed concern that President Johnson’s remarks were constitutionally protected, [FN72] others disagreed. Senator Jacob Howard, for example, stated that “[n]o question of the ‘freedom of speech’ arises here.” [FN73] (emphasis added).
FN72: 3 Trial of Andrew Johnson 206 (1868) (speech of Sen. Joseph Fowler).
FN 73: Id. at 49 (speech of Sen. Jacob Howard).
This passage is problematic. It states, without any equivocation, that there is “no precedent.” But the Managers do not explain what precisely they believe counts as a “precedent” in the impeachment context. In the judicial context, there is wide-ranging disagreement about what precisely constitutes a “precedent.” In the impeachment context, this issue is even more contested. We acknowledge that there is no single view about what counts “precedent” for the impeachment process. There are a multitude of ways to answer this question reasonably. But the House managers do not even countenance this reasonable range of views.
We think the Managers were wrong to make such an unqualified statement: there is “no precedent.” Indeed, they cite evidence that undermines this bold assertion. For example, Footnote 72 cites a statement made by Senator Joseph Fowler who stated that President Johnson could raise the First Amendment as a defense in the impeachment process. He said, “However much I may condemn the style and tone of these speeches, I cannot see that Mr. Johnson did more than exercise that liberty of speech guaranteed to him by the Constitution and laws of the country.”
Prominent members of the Reconstruction Congress agreed with Fowler, and argued that Johnson could raise the First Amendment as a defense. Furthermore, Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the People. Fessenden chaired the Joint Committee on Reconstruction, which drafted what became the Fourteenth Amendment. We would wager that Senator Fessenden’s knowledge of the impeachment process was substantial—every bit as substantial as the signatories of the academics’ letter. Senator Fessenden’s position is not “frivolous.”
Our position has never been that Senator Fessenden stated the only position about the propriety of a First Amendment defense in the impeachment context. But his statements, and those of his colleagues, rebuts the position in the academics’ letter that the First Amendment is inapplicable in impeachment proceedings and is a “frivolous” argument. Moreover, Senator Fessenden’s view has continued into the modern era. In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, “[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good.” The Chief Justice was right.
Third, the Managers do not care what Senator Jacob Howard, Senator William Pitt Fessenden, or anyone else said during Johnson’s Senate impeachment trial. The Managers’ Reply Memorandum states that because the Senate never voted on Article 10, no precedent was set.
Ultimately the Senate never voted on the article and thus made no judgment about the relevance of the First Amendment.
This argument takes a cramped view of congressional practice in the impeachment context. First, there was a good reason why the Senate did not vote on Article 10. Earlier in the proceedings, the Senate failed to produce a conviction on Articles 2, 3, and 11. These articles, which concerned President Johnson’s removal of Secretary of War Edwin Stanton, were viewed as the stronger charges. After Johnson was acquitted on those three charges, the Senate recognized that convictions on the weaker charges were unlikely. As a result, there was a general agreement to terminate proceedings. The House’s failure to secure a conviction in the Senate reduces the claim that the House’s articles of impeachment are good precedents. How “reduced” is a matter about which reasonable minds can, have, and do disagree.
Indeed, the Managers’ cramped view of congressional practice reminds us of Justice Scalia’s long-standing criticism of legislative history. Justice Scalia argued that Congress can only act through voting on a statute. Therefore, courts should ignore legislative history because Congress does not vote on it. And Justice Scalia was loath to consider the legislative history of statutes that were never enacted. According to the Managers, unless the Senate actually votes on an article, the deliberations over that article can be discarded. Justice Scalia’s views may make some sense in the context of run-of-the-mill dispute over statutory interpretation. But we should be more solicitous of Senate presidential impeachment deliberations, which are exceptional. Indeed, Senate precedent is routinely built on practices that do not lead to a final vote. Before President Trump was inaugurated, our nation had two presidential impeachment trials in two centuries. Every aspect of those proceedings have been carefully studied and reviewed in scholarship and judicial proceedings. Everyone has always thought that it was proper to do so. House and Senate impeachment proceedings are not akin to mere committee reports prepared by unknown staffers for a bill. The House and Senate regularly reprod
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