Is There a Free Speech Defense to an Impeachment?

President Trump delivers remarks on Jan. 12, 2021. (Trump White House Photo) It seems likely that if and when President Trump is put on trial in the Senate for high crimes and misdemeanors, his lawyers will argue that the president was exercising his First Amendment right to free speech in the weeks after the election—and, as a consequence, his words cannot form the basis of an impeachable offense. Senators should not take this argument seriously.  By the time of a Senate trial, it is possible that the House of Representatives will have adopted additional articles of impeachment. But it is notable that the article of impeachment that the House has adopted thus far focuses on things the president has said: In the months preceding the Joint Session, President Trump repeatedly issued false statements .... Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, D.C. There, he reiterated false claims .... He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol .... President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to “find” enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so. At least some of the speech included in this article of impeachment would be constitutionally protected under the First Amendment if said by a private citizen. Some scholars have argued that, as a consequence, this speech cannot be a constitutionally valid foundation for a House impeachment or a Senate conviction, and that the president has a reasonable legal defense in his impeachment trial that his alleged actions were protected under the First Amendment. Even if senators are inclined to acquit the president, they should forcefully reject this line of defense. The House can impeach and the Senate can convict an officer for engaging in lawful conduct . The constitutional impeachment standard of high crimes and misdemeanors is not limited to criminal conduct under ordinary criminal statutes—though many ordinary criminal acts, if committed by a federal officer, may be impeachable. The impeachment power is given to Congress to address myriad cases of noncriminal, political misconduct. The fact that an action is lawful is no defense to impeachment and conviction in the Senate. It is possible that at least some of the actions alleged in the article of impeachment are also criminal acts punishable in the ordinary courts. The Constitution specifically allows for criminal prosecution for the same underlying acts that were considered in an impeachment trial. Nonetheless, the criminal case is not an easy one, in part because the president’s actions might not meet the statutory conditions for a criminal offense. It is also possible that the president would have a valid free speech defense for some potential criminal charges . The Supreme Court understands the First Amendment to put severe limits on what speech can be prosecuted for inciting a riot or encouraging seditious activity, and with good reason. But the Senate need not question those First Amendment protections against criminal prosecutions in order to convict the president of impeachable offenses. Assume for the sake of argument that the president has a valid First Amendment defense against criminal prosecution for anything included in the article of impeachment. Does that also mean the president has a valid First Amendment defense against an impeachment? The First Amendment does not shrink the scope of the impeachment power or alter what conduct would fall within the terms of high and misdemeanors. When drafting the Bill of Rights, James Madison took care to include only provisions that he thought were compatible with the existing body of the Constitution drafted in 1787. The adoption of the First Amendment, from Madison’s perspective, would reaffirm what was already true about the Constitution, not carve out new exceptions to it. It is inconceivable that Madison would have thought that his proposed affirmation that the freedom of speech may not be abridged by the new federal government meant that an exception was being carved out of the power of Congress to impeach and remove officers for high crimes and misdemeanors. That which was impeachable before the adoption of the First Amendment was still impeachable after. It is worth noting, as Jonathan Adler and Ilya Somin have, that government employees and political leaders have limited First Amendment protection for things that they say on the job or that affect how they can function in their job. When job security rather than criminal prosecution is on the table, the Supreme Court has long recognized that government employees can be removed from their positions for engaging in speech that would be lawful and constitutionally protected if uttered by a private citizen. In Pickering v. Board of Education , the Supreme Court held that a public school teacher could not be terminated for writing a letter for newspaper publication so long as the letter did not affect his functioning in the workplace. In Garcetti v. Ceballos , the Supreme Court upheld the termination of a deputy district attorney for speech made in pursuance of his duties as a government employee. As the court has long recognized, public employment comes with some restrictions on “ the exercise of constitutional rights .” Government employees and public officials have public responsibilities that dictate that they not behave in the same way as private citizens and that they not exercise the full scope of the liberty that is allowed to the private citizen. If a civil service employee in the Department of Justice had done the things contained in the article of impeachment, he could be justly terminated from his federal employment despite the First Amendment. If the attorney general had done the things alleged by the House of Representatives, the president could justly fire him despite the First Amendment. There are many things that could get a government employee or a Cabinet secretary fired that would not rise to the level of impeachable offenses, but there is nothing that would otherwise be an impeachable offense for which the First Amendment would shelter an officer from Senate conviction and removal. There is only one impeachment power and one standard for impeachment. That standard for impeachable offenses applies equally to all the government officials subject to it, whether judges, executive branch officers or presidents. It is best to be careful not to deform the scope of the impeachment power by bending it to account for the specific behavior of a particular individual. Of course, judges and presidents have different job responsibilities and adhere to different standards of behavior, and the House and the Senate have traditionally recognized that distinction by following the principle that impeachable offenses involve “ charges of misconduct incompatible with the official position of the office holder .” If a judge acted like a president, she could and should be impeached. But if a president has a First Amendment defense against impeachment charges, then there is no reason to think that other officers cannot take advantage of the same argument. The relevant question in an impeachment should never be whether the actions under scrutiny are constitutionally protected by the First Amendment but whether they are high crimes and misdemeanors when committed by this individual holding this office in this context. Imagine that a sitting federal judge told flagrant public lies about the fairness and outcome of a federal election or made false statements that could foreseeably lead to mob violence. Is there any doubt that such a judge could be impeached and removed from office? It would not matter if a judge made such pronouncements from the bench or on social media or at a lectern. Those statements would be grossly incompatible with the judge’s office. Imagine, for example, a sitting federal judge who said in a television interview that the Republican Party is a seditious conspiracy and deserves to be wiped out and its members jailed or shot. There is no doubt that such a judge could no longer be trusted to faithfully perform his duties in the public trust. Imagine a sitting judge accompanying the incumbent president on the campaign trail and delivering speeches urging voters to reelect the president and to vote against all the members of the opposition party. Such a judge would be subject to impeachment and removal. The fact that such speech is protected by the First Amendment would be no defense. Such actions are impeachable, and the Senate could appropriately conclude that such a judge deserved condemnation and conviction and removal in an impeachment trial. The Senate could
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