Donald Trump will try to make his impeachment about free speech
The real issue is — once again — his election interference.
With the House of Representatives having voted to impeach President Donald Trump for incitement to insurrection, it’s time to start contemplating what Trump’s defense will be in a Senate trial. The answer can be summed up briefly: Trump’s lawyers will argue that Trump did not commit a crime of incitement and that his words were protected by the First Amendment.
But wait, you may say, if you can remember Trump’s 2020 Senate trial 12 months ago (so much has happened since then that I barely can — and I testified during the House Judiciary Committee proceedings): Impeachment is for high crimes and misdemeanors under the Constitution. That doesn’t require conviction of a federal crime.
That means the First Amendment as interpreted by the Supreme Court isn’t relevant and shouldn’t protect Trump. The framers kept the “high crimes and misdemeanors” language intentionally broad so that presidents could be held accountable for a wide array of abuses of power, including interfering with a free and fair election.
Yet, still thinking back to the last impeachment, you will also recall that Trump’s lawyers — and some of his Senate defenders — never conceded that basic legal fact. In addition to arguing that Trump had done nothing wrong in his “perfect” phone call with the president of Ukraine, Trump’s defenders also maintained that Trump could not be impeached because he had not committed a federal crime. They insisted, despite the historical and logical evidence, that high crimes and misdemeanors under the Constitution need to be statutory federal crimes.
They are going to make that argument again. And this time, they will also be able to wrap themselves in the patriotic flag of the First Amendment. Specifically, they are going to rely on an iconic 1969 free-speech decision by the Supreme Court, Brandenburg v. Ohio.
{{/usCountry}}They are going to make that argument again. And this time, they will also be able to wrap themselves in the patriotic flag of the First Amendment. Specifically, they are going to rely on an iconic 1969 free-speech decision by the Supreme Court, Brandenburg v. Ohio.
{{/usCountry}}The Brandenburg case reframed the law of incitement, extending the protection of the First Amendment beyond where it had been before. As late as the notorious 1951 case of Dennis v. United States, the court was still using a version of the “clear and present danger” test first devised by Justice Oliver Wendell Holmes in 1920. In the Dennis case, that standard was interpreted to allow conviction of nearly a dozen leaders of the Communist Party USA for sedition.
{{/usCountry}}The Brandenburg case reframed the law of incitement, extending the protection of the First Amendment beyond where it had been before. As late as the notorious 1951 case of Dennis v. United States, the court was still using a version of the “clear and present danger” test first devised by Justice Oliver Wendell Holmes in 1920. In the Dennis case, that standard was interpreted to allow conviction of nearly a dozen leaders of the Communist Party USA for sedition.
{{/usCountry}}By 1969, free-speech advocates and scholars had come to see the Dennis approach as out of step with contemporary values of political self-expression. In the Brandenburg case, the court said that the government can’t outlaw or punish “advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
The Brandenburg rule thus has two components. The first is that the speech is “directed” to inciting imminent lawlessness. The second is that the speech is actually likely to achieve its result.
Again, under the Constitution’s definition of high crimes and misdemeanors, it isn’t legally necessary for Trump to have committed a federal crime. Abusing the power of his office is plenty. Nevertheless, Trump’s supporters will insist that Trump’s conduct fails the Brandenburg test and thus isn’t impeachable.
Whether Brandenburg would protect Trump from federal criminal prosecution is a subtle question. There probably wouldn’t be much doubt about the second prong, “likely to incite.” Trump’s speech did in fact incite lawlessness, and so it certainly seems to have been likely to do so.
The hard part is whether his speech was “directed” to incitement. Some scholars think this means that Trump’s words need to have explicitly called for violence. Read literally, they didn’t.
Yet a counterargument to this requirement of literalism has long been that it would inappropriately protect speech that was artfully framed to incite violence without ever explicitly doing so. The classic example is the speech given by Shakespeare’s Mark Antony over Caesar’s dead body. The speech famously uses irony (“Brutus is an honourable man”) to incite the mob to violence. It’s therefore plausible to conclude that the Brandenburg test doesn’t require literal use of inciting language.
If calls for violence don’t have to be explicit, the prosecuting side has an obligation to prove that violence is nonetheless what the speaker intended to incite. (Some scholars think both literal incitement and intent are required.) Circumstantial evidence — like whether he actually refused to call in the National Guard — could help to prove Trump’s intent. Without it, however, Trump will simply be able to say that he did not intend to incite violence, making it difficult to convict him for a crime under the Brandenburg standard.
Needless to say, it would be a terrible shame if Trump’s impeachment trial devolved into a legalistic exchange about whether the First Amendment and Brandenburg apply in impeachment proceedings. That’s exactly why you can expect Trump’s defenders and lawyers to make the argument. It’s reason to worry that the result of Trump’s second impeachment trial will be no different than the result of his first one.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”
