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.