Trump’s Frivolous First Amendment Defense

A letter signed by 144 First Amendment scholars—including some of its most vigorous defenders—firmly rejected the idea that Trump’s impeachment would violate the First Amendment, calling it “legally frivolous.” In summing up, they wrote:

As scholars of constitutional law, we know there are many difficult questions of First Amendment law. But the permissibility of President Trump’s impeachment trial is not one of them. The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement.

But, rather than “legally frivolous,” a better word might be “absurd,” as Impeachment Manager Jaime Raskin explained:

“This case is much worse than someone who falsely shouts fire in a crowded theater. It’s more like a case where the town fire chief who is paid to put out fires sends a mob not to yell fire in a crowded theater, but to actually set the theater on fire, and who then when the fire alarms go off and the calls start flooding into the fire department asking for help does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on tv with glee and delight.”

Trump’s False Claim That He Can’t Be Impeached

The primary excuse GOP Senators used to acquit Donald Trump was the false claim that the Senate could not try an ex-president—even though it was GOP Senate Leader McConnell who blocked the Senate from considering the case before Trump left office.  Impeachment of former officials occurred in England before the Constitution was drafted, was present in state constitutions, and has happened since—though never involving a president.  What’s more, the argument was soundly rejected by 150 constitutional scholars in a January 21 letter, including several highly prominent conservatives.

“[T]he ability to try, convict, and disqualify former officials is an important deterrent against future misconduct,” they wrote. “If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”

Finally, the Constitution grants the Senate “the sole Power to try all Impeachments.” 

This obviously includes the power to determine jurisdiction, which the Senate voted on first, determining that Trump could be impeached by a 55-45 vote. North Carolina Senator Richard Burr specifically cited this vote as establishing Senate precedent and over-riding his personal view (he voted in the minority). So, he ultimately voted to convict Trump on the facts.