Former President Donald Trump's attorneys have filed a 78-page brief arguing that he shouldn't be tried by the Senate in an impeachment trial that begins Tuesday. Trump is accused of "instigating an insurrection" through various statements allegedly encouraging the January 6 coup against the US Capitol.
The main arguments of the brief are constitutional. It is alleged that the constitution does not allow impeachment proceedings against a former civil servant. And the letter also argues that Trump is immune to impeachment because the measures that led to that impeachment are protected by the first amendment.
The first argument isn't entirely ridiculous, at least. While the majority of scholars believe that a former Senate civil servant can be tried and convicted, there are no light-hearted arguments to suggest that a former president is outside of impeachment.
However, to claim that Trump's indictment violates the First Amendment is risky. There are at least three different reasons why the first amendment doesn't protect Trump.
The first is that impeachment is essentially a human resource issue. The constitution provides that "the judgment in cases of impeachment may not go further than impeachment and disqualification from holding and enjoying an office". With Trump out of office, the only question on his second impeachment trial is whether he should be permanently banned from certain federal jobs.
As the Supreme Court in Connick v. Myers (1983) stated that "the interests of the state as an employer in regulating the language of its workers are very different from those it has in regulating the language of citizens in general". While the government's power to discipline employees (or former employees) for using deviant language is not absolute, it is broad enough to expel Trump from office.
The second reason Trump cannot invoke the first amendment is because many of the statements he made that allegedly sparked the January 6 attack on the Capitol are lies. Trump accused the Democrats of trying to "steal the election" and falsely claimed that he "overwhelmingly" won an election he lost with over 7 million votes.
As the Supreme Court found in the New York Times v. Sullivan (1964), the first amendment does not protect individuals from defamation lawsuits if they make a false claim “knowing that it was wrong or regardless of whether it was wrong was or not. A similar rule should apply to Trump for the reasons explained below.
Finally, some of Trump's statements – like a January 6th speech telling his supporters to "fight like hell" and "you will never retake our country with weakness." You have to show strength and you have to be strong ”- can be an incitement to imminent illegal actions that are not protected by the constitution.
The government can discipline its own employees
Although the first change provides some protection to government employees, those protections are much weaker than those given to individuals, at least when the government is trying to fire or otherwise crack down on an employee.
For example, imagine that a public school hires someone to teach algebra, but that teacher refuses to follow the curriculum and instead spends his class time teaching his students about 16th-century Japanese art. The first change protects a private citizen's right to speak about Japanese art, but the school district could discipline or even fire that teacher for not doing his job properly – although their only offense was giving a speech that would normally go through the constitution is protected.
While the first amendment provides a relatively robust shield against workplace discipline for ordinary government employees, the constitution provides very little protection for high-ranking officials in political professions. As a private person, for example, Foreign Secretary Tony Blinken can criticize President Joe Biden's foreign policy. However, as one of Biden's top lieutenants, Blinken can be dismissed immediately if he makes a derogatory comment on Biden's policies.
As the Supreme Court in Branti v. Finkel (1980) stated, “If a worker's private political beliefs were to interfere with the performance of his public duties, his initial adjustment rights might be required to yield to the state's vital interest in maintaining the effectiveness of government. "
Trump's private political conviction that he and not the rightful winner of the 2020 presidential election should be president must therefore "yield to the vital interest of the state in maintaining the effectiveness and efficiency of the government".
Trump's attorneys rely primarily on the Supreme Court ruling in the Bond v Floyd case (1966) that the Georgia House of Representatives broke the first amendment when it prevented state elected Julian Bond from taking his place. allegedly because of statements Bond made to criticize the Vietnam War. (Bond, a major civil rights activist, was one of the first black officials to be elected in Georgia after the voting law of 1965 was passed. It is quite likely that the real reason he was disfellowshipped was less related to his opinion about the war had to do than the color of his skin.)
The Bond decision is more than half a century old, and since then we have seen quite a number of cases involving the protection of government employees under the First Amendment, including the Branti case. So it's not entirely clear that Bond continues to be good law. However, to the extent that Bond is still valid, Trump's lawyers argue that cases like Branti only apply to appointed political officials – and that Bond offers much more stringent protections to elected officials.
But even if we accept that elected officials enjoy better protection from First Amendment than political representatives, the Bond case does not help Trump escape impeachment.
According to the First Amendment, lies enjoy little or no protection
In 1960, civil rights activists advertised in the New York Times alleging that Alabama police had used brutal tactics to quell protests. In response to the complaint, an Alabama police officer filed a defamation lawsuit against the Times, pointing to minor factual errors in the ad copy. A jury in Alabama ruled the Times for $ 500,000.
However, the Supreme Court overturned this ruling in the New York Times v. Sullivan (1964), a landmark ruling that the first amendment provided strong protection against defamation claims that threaten freedom of speech. While these safeguards are quite robust, especially when a defamation lawsuit contains statements about a public figure relating to a matter of public interest, they are not unlimited.
At the very least, someone can still successfully be sued for libel if they make a false statement "with the knowledge that it was wrong or with ruthless disregard whether it was wrong or not," according to the New York Times.
Although the New York Times was about defamation, rather than the first adjustment rights of elected officials, the court relied heavily on the New York Times to rule on Bond. To explain why Rep. Bond's rights were violated, the court stated: “The key obligation of the first amendment, as summarized in the court's opinion in the New York Times Co. v. Sullivan case, is that the Debate on public issues should be uninhibited, robust and wide open. & # 39; ”
Under Bond, the "New York Times Principle" was "extended to include statements by a legislator".
Two years after Bond, the court issued its decision in the Pickering v Board of Education of the Township High School District (1968), which established the modern framework for initial adjustment suits by government employees. Pickering involved a public school teacher, not an elected official, but it also supports the view that government employees have no right to lie under the First Amendment.
In the Pickering case, the Court ruled that "the exercise of the right to speak on matters of public concern by a teacher without evidence of false statements made knowingly or recklessly may not constitute the basis for dismissal from public service."
In other words, the New York Times, Bond, and Pickering suggest that a government employee's initial adjustment rights, whether or not that employee is elected, include no right to knowingly make false statements or make statements with reckless disregard whether they are true or not Not.
When Trump angered his supporters by falsely claiming that the 2020 election had been stolen from him, the first amendment did not protect him.
Trump's January 6 speech may not be constitutionally protected
In the Brandenburg v Ohio (1969) case, the Supreme Court ruled: “The constitutional guarantees of freedom of speech and freedom of the press do not allow a state to prohibit or prohibit the advocacy of the use of force or violations of the law, unless such advocacy aimed at them inciting or producing imminent lawless acts and likely inciting or producing such acts. "
While spokespeople, including Trump, are protected even when advocating illegal acts, that protection has limits. If such advocacy is intended to encourage "impending lawless acts" and if such an act is likely to result from a person's speech, that speech is not protected by the first amendment.
Brandenburg sets high standards for law enforcement. But Trump's statements just prior to the January 6th coup were so egregious that they could break that high bar. In a speech he gave just before his supporters attacked the Capitol, Trump told them, "If you don't fight like hell, you will have no more land", that "they have to take our country back". "And that they cannot show any" weakness "and" have to be strong ".
Harvard law professor Eine Elhauge writes in the Washington Post that even under Brandenburg, these statements represent constitutionally unprotected incitement:
Although Trump tried to protect himself by stating he was certain the crowd would march "peacefully" to the Capitol, that doesn't change the fact that he was calling on the crowd to forcibly prevent Congress from certifying Counting votes once they got there.
Trump therefore clearly instigated lawless action (obstruction of the operations of Congress is a crime) that was imminent (immediately after the speech, a short walk away). That he wanted to incite such lawless actions is confirmed by the reports that he watched the Capitol attack with pleasure for hours and did not take steps to stop it by calling on the National Guard or urging his supporters to resign.
Here, too, it is far from clear that Trump could be prosecuted for his statements in a criminal court – Brandenburg makes it extremely difficult for prosecutors to win such cases. But that's not the problem with Trump's impeachment proceedings.
Trump's impeachment proceedings are about whether, given that the government has extensive powers to make personnel decisions under the First Amendment, whether or not Congress can conclude that Trump's testimony was so pale he thought he was going to do one high federal office should exclude the future.
Aside from these legal flaws in Trump's First Amendment argument, there is also a profound practical reason why officials should be charged, even if they did nothing but deliver an illiberal or anti-democratic speech.
Imagine that one day a new president is elected after fighting on a fairly mainstream platform. In the President's inaugural address, they reveal that the entire campaign was a charade: “I am a great admirer of National Socialist Germany,” explains the new President in his inaugural address, “and I plan to use my presidency to have a fourth build empire. "
Should Congress really have to wait for this Nazi president to take a positive step to implement this agenda before they can be charged and removed from office?
As Ilya Somin, a law professor at George Mason University, writes, Trump's argument that he cannot be charged for his speech implies that “Congress could not indict and remove a president who openly announced his intention to convert the United States into one to transform communist or fascist dictatorship, "Because" a speech advocating despotism is protected from criminal punishment by the first amendment when pronounced by a private individual. "
But Trump is wrong that he is protected by the first amendment. The government has far more leeway in personnel decisions than in regulating the speech of private individuals. And even if Trump had simply spoken as a private individual, there is a strong argument that his behavior was so egregious that it could be prosecuted as incitement.