Monday, February 08, 2021

Trump's Impeachment Defense and the Problem of "Insider Political Violence"

 by Michael C. Dorf

Last week Donald Trump's (latest batch of) lawyers filed their formal Answer to the impeachment charge. It makes two main arguments: (1) that the Senate trial is unconstitutional because Trump is no longer president; and (2) that Trump was merely exercising his constitutional right to free speech.

Point (1) is very clearly wrong, as numerous commentators, including Prof Buchanan on this blog, have pointed out. Neither Trump's lawyers nor the 45 Republican Senators who accept this makeweight argument have an answer to the objection that under their reading of the Constitution, an officer could evade the express provision for disqualification by resigning the moment after the Senate convicts. I'll say more about Trump's free speech defense momentarily, but first I want to address one other bit of illogic in the Answer.

The Answer walks up to the line of asserting Trump's own lies about voter fraud but does not quite get there, instead contending that there is insufficient evidence for a reasonable jurist to conclude whether Trump's claims about the election were true or false because state and local officials "under the convenient guise of COVID-19 'safeguards'" changed election procedures "without the necessary approvals from state legislatures."

While not endorsing Trump's election-fraud lies, that statement is highly misleading and probably deliberately so. It conflates the "legislatures-only" theory of Article II that a majority of Supreme Court justices seem to like (but which has nothing to recommend it) with a factual claim. Whether a state legislature approved or didn't approve an interpretation of state election law and whether that interpretation is sufficiently implausible to constitute a "change" in state election law have nothing to do with whether, as a consequence of the ostensible change, votes are fraudulently cast or counted. Statements by Trump like "in certain swing states, there were more votes than people who voted, and in big numbers" are demonstrably false and would be false even if one fully accepted the legislatures-only theory and thought that changes to election law occurred outside the scope of Article II.

So sure, Trump's lawyers don't endorse his election-fraud lies, but their claim that it's impossible to tell whether Trump was lying because the truth is obscure is itself blatantly false.

Now let's turn to free speech.

The Answer is short but nonetheless filled with nonsense. For example, it contains the following: Trump "believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from retaliation." The uniqueness claim is not true, as anyone with an Internet connection and an interest in facts can verify.

The Canadian Charter of Rights and Freedoms, South Africa's Constitution, just about every other constitution of a democratic country, and the International Covenant on Civil and Political Rights (to which nearly every country in the world has acceded) all protect free speech. To be sure, those documents do not "specifically" in the sense of expressly refer to "unpopular speech," but then, contrary to Trump's lawyers' Answer, neither does the First Amendment.

The Answer might have been on firmer ground if it had stated that U.S. free speech law is more permissive in certain respects than the free speech law of just about every other country in the world--but of course the principal way in which U.S. free speech law is an outlier concerns U.S. toleration for hate-speech. The U.S. is not an outlier in tolerating dissident speech. But then saying Trump has a constitutional entitlement to engage in hate-speech does not seem like much of a defense.

Before moving on to the core of the free speech issue, it's worth considering one more way to understand that odd uniqueness claim in the Answer. It may well be true that Trump "believes" in the false proposition that the U.S. Constitution and Bill of Rights are unique in protecting dissident speech. After all, Trump pretty clearly does not know the contents of the U.S. Constitution, much less of other countries' constitutions. But even granting that Trump is truly ignorant, so what? How does a sincere but false belief about the U.S. Constitution's uniqueness or content aid his defense? If Trump "believed" that he had no duty to preserve, protect, and defend the Constitution because he had his fingers crossed when he took the oath of office, that belief would not be relevant to his dereliction of duty. So too, Trump's beliefs about the Constitution are simply not relevant to the impeachment trial.

I suspect that beyond demonstrating their own jingoistic ignorance, Trump's lawyers were conflating again. The subjective beliefs of a speaker are relevant to whether that speaker can be held criminally liable for incitement under the First Amendment. Brandenburg v. Ohio limits such liability to cases in which the words spoken are "directed to inciting" imminent violence. Some of Trump's beliefs are relevant to his mental state, which is relevant to whether he can be convicted and imprisoned for a crime based on his January 6 speech. However:

(1) Trump's beliefs about the First Amendment are not relevant to whether he committed incitement.

(2) As I discussed last month and as a letter signed by numerous constitutional law scholars elaborates, the standard for conviction in a Senate impeachment trial is not the same as for a criminal conviction. I disagree somewhat with the way in which the scholars' letter articulates the point. It says "The First Amendment does not apply in impeachment proceedings," whereas I would say (as I did say in the essay linked at the beginning of this paragraph) that it applies but imposes different limits--just as it imposes different limits in civil damages actions, actions for injunctive relief, and criminal prosecutions. But the bottom line is the same: Even if the Brandenburg test is not met, Trump can be found guilty on the impeachment charge.

(3) Anyway, as both my earlier essay and the letter argue, taken in context, even applying the Brandenburg test, Trump's speech could be the basis for a criminal incitement prosecution (although he almost surely will not face one).

(4) I have come to think that the Brandenburg test and the paradigm on which it builds fail to capture the current stakes. Accordingly, I am working on a paper that I'll present at a conference near the end of the current month: Here's a precis of the precis:

Constitutional doctrine permitting government intervention against incitement of violence has hitherto been built around a paradigm of what I shall call outsider violence—acts perpetrated by anarchists, communists, and other marginal figures who have virtually no chance of succeeding in their political aims but nonetheless pose a threat to public safety. By contrast, with the emergence of political violence as a tactic favored by substantial numbers of supporters of one of the two major political parties, the United States now faces a threat of what I shall call insider violence. Like outsider violence, insider violence poses a potential risk to public safety, but in addition, insider violence also poses a risk of fatally undermining democracy. Insider violence thus raises a new and urgent set of questions about whether and, if so, how to re-calibrate constitutional law governing permissible restrictions on speech and assembly.

To be clear, we don't need to re-calibrate our law to hold Donald Trump accountable for his attack on constitutional democracy in America. He won't be held accountable, but that's because a majority of Republican Senators are cowardly careerists, not because of any genuine legal obstacle. Going forward, however, we may need to develop stronger legal tools to combat insider political violence than the ones we have developed to combat outsider political violence.


Hashim said...

Mike, the evasion-of-disqualification rationale isn't nearly as powerful as you suggest. After all, it is well established that the death of a criminal deft before the sentence becomes final on appeal terminates a prosecution, even though that means a deft can "evade" monetary fines by committing suicide after the jury convicts - an act that could well be rational if the fines were large enough and the deft old enough. Instead, whether former officials may be impeached should be analyzed based on text, structure, and history - the anti-evasion rationale isn't that persuasive on its own terms, and certainly wouldn't be decisive if the relevant interpretive factors cut the other way (a question that I take no position on, beyond my limited textual observations in commenting on prof buchanan's posts).

Michael C. Dorf said...

Hash, the fact that some penalties can be evaded strikes me as a bad reason for allowing evasion of those about which something can be done. And as the House brief notes, there is good (albeit limited) historical precedent here.

Hashim said...

Isn't that begging the question? Theoretically, the law could allow continuation of the prosecution against the estate to recover the fines. The point isnt that the fines are factually unrecoverable, but only legally so, because the law has decided not to pursue the fines at all costs. Depending on text and history, the same may or may not be true here (I haven't studied the history enough to opine). And incidentally, one can even think of a policy reason cutting the other way - namely, there is a benefit to incentivizing resignations, which avoids the need for trials and the possibility of acquittals. So that's yet another reason why the anti-evasion rationale doesn't carry as much weight as you and others have given it.

Michael C. Dorf said...

Because the evasion issue s at best tertiary to my free speech points in this essay, I'll let it go after this final point: The example of recovering from estates seems to me to cut the other way. The death of a debtor generally does not extinguish the debt. The reason why a criminal's death excuses payment of a fine is that a fine is meant as punishment, which is unfair to visit on the criminal's heirs. The point of disqualification is to protect the public from one who has abused the public trust. Of course, the Senate can reach the judgment that disqualification is not necessary or warranted in a particular case (whether to incentivize resignation or for some other reason)--but I see nothing in the constitutional text or history that forces that judgment on the Senate in all cases.

CEP said...

This comment thread overstates matters, and unwinding the reality of "the defendant died before final judgment" demonstrates why. Consider this: Jeffrey Epstein is dead. Does that mean that all pending civil matters claiming damages from him or his estate are also dismissed? Not at all.

What this really exposes is the question that is not being confronted here: Is impeachment a criminal matter? If it is not, then the departure from office of the impeached-but-not-yet-tried individual is irrelevant to the trial; it concerns only the remedies afforded, just like in civil litigation (because, for example, a remedy like "removed as a company director upon a civil liability finding of securities fraud" can't apply after death, but all of the other available remedies like money damages remain, well, available).

The very language of the impeachment clause (including the nonspecificity of what constitutes a "high crime" or "misdemeanor", the explicit nonunanimity which would have shocked any criminal prosecutor in the 1780s, the inability to remove "interested" and "conflicted" jurors, etc.) indicates that whatever impeachment really is, it is not a criminal proceeding. Thus, the equivalent of the "death" of the "defendant" (better term would be "respondant") is simply not a cause for ending the trial. It is a limitation on available remedies after trial, but that is at most a prudential or futility issue, parallel to the problem of "nominal damages" only being sought in defamation matters.

tl;dr Drawing parallels to the "result" of a criminal trial necessarily assumes that impeachment is a criminal trial; it isn't, and any analogy is neither close nor persuasive.

Fred Raymond said...

I don’t see how impeachment could be considered a criminal matter because it results in the loss of employment, similar in effect to being laid off from a job.

Steve Davis said...

I think the question of whether a former President can be impeached is closer and less clear than you portray it as. The "evasion" argument is a very good argument, but it's not obviously decisive of the issue, for a number of reasons. I'm not sure where I come down on this issue. I want to see justice done to Trump, and I certainly don't want to see him running again in 2024, but I think this is much closer than you give it credit for being.

First, the language of the Constitution suggests the primary reason for impeachment is removal of the President. Disqualification is another purpose, but it's reasonable to read the language as suggesting it's a secondary purpose, or that removal is a precondition for disqualification.

Second, while evasion obviously would be bad, is it likely? Is it probable to imagine a President resigning from office so he/she can run again in the future? This seems unlikely to me. It's overthinking it, and it's overthinking it to imagine that the authors of this clause thought about this. They might well have just thought, "Impeachment is for removal, and if they remove, they can also disqualify." I don't think that's an obviously correct interpretation, but I don't think it's obviously incorrect, either. It's plausible.

Third, there are slippery slope arguments why we might not want Congress to be able to impeach a former President. What if a one-term President had been out of office for a while and Congress, which recently was taken over by that President's opposing party, decided it wanted to disqualify that person from being President in the future? It seems somewhat far-fetched, but not that much more far-fetched than the evasion scenario. This would seem to be undesirable.

Fourth, it's anti-democratic. Generally speaking, the people should decide. It's not up to Congress to say who can be President. Constitutional provisions enabling Congress to remove the President should, perhaps, be read narrowly to maximize the ability of the people, not Congress, to decide who the President is.

To be clear, I'm not certain how I come down on these arguments, but they don't strike me as obviously wrong. I see both sides on this issue. But I think it's important not to let the peculiar awfulness of Donald Trump persuade us to adopt general rules that we don't want to be general, if we really think about it.

Joe said...

I'll rest on the range of scholars who refute the "can't convict after leaving office" argument [well covered too in the House brief], but to be picky:

45 Republican Senators who accept

The one official case of this happening was a vote to end debate. It wasn't really a final vote on the merits. Schumer in fact said it would be covered again & there is time apportioned in the trial to cover such constitutional arguments.

Joe said...
This comment has been removed by the author.
Joe said...

"He won't be held accountable"

A possible alternative, and not just for him, would be the 14th Amendment provision barring future office. Exactly how to apply that is debated, but it is also fairly clear (it hasn't been applied in recent years, so only so clear how it should be applied) that even states and localities could enforce it.

A third approach might be a possible civil suit for someone injured by the events. A fourth is Georgia prosecution for something that is part of the lead-up, namely the call.


Since the argument is made, to be clear, this to me is not grounds to avoid an impeachment trial. Impeachment is a specific means of constitutional check, one in fact offered by certain Trump lawyers (w/o naming names) when other means were being blocked. That holds now as well.