by Michael C. Dorf
[**Updated to acknowledge two articles I neglected to cite in the initial version:]
After four years that felt like four lifetimes and a post-election eleven weeks that felt like eleven years, Inauguration Day is finally here. My new Verdict column addresses one of the challenges that will now confront President Biden and other rational Americans: the fact that so many people believe in dangerous nonsense. I suggest that the reasons for such beliefs are pretty deeply rooted in human psychology. The political power of conspiracy theorists and the craven politicians who do their bidding might not derail the Biden legislative agenda, but the conspiracy-theory-believing Americans themselves will make it harder to accomplish some of the urgent tasks that require public buy-in.
Now I want to shift gears and discuss the upcoming Trump Senate impeachment trial--which is being described by some as another potential obstacle to the Biden agenda, if for no other reason than that it will distract the Senate from other business. I believe that particular obstacle can and should be overcome by expeditious scheduling by soon-to-be-Majority Leader Schumer. That said, interesting constitutional questions await in the Senate impeachment trial.
In a recent essay, I offered three reasons why the free-speech defense suggested by some commentators should not avail Trump in his Senate impeachment trial: (1) Non-criminal conduct can be the basis for impeachment, so it does not matter whether Trump's speech at the January 6 rally preceding the storming of the Capitol and the course of conduct that led up to it amounted to a crime; (2) Trump's goal in fomenting violence may have been to create a pretext for martial law and the delay or cancellation of Biden's inauguration, which would be a separate ground for impeachment; and (3) in any event, Trump did commit the crime of incitement of violence, which, applying the Brandenburg test, was not shielded by the First Amendment.
In response to my prior essay, a colleague asked me an interesting set of questions about the relation between (1) and (3). Granting that non-criminal conduct can be the basis for impeachment, the colleague asked, is the fact (or not) of First Amendment protection irrelevant to impeachability? More broadly, to what extent, if any, do constitutional rights apply in a Senate impeachment trial? I'll address both of those questions, along with some further wrinkles involving the 1993 SCOTUS decision in the Judge Walter Nixon Case, which forecloses judicial review of impeachment procedures.