On impeachment, Part Three, free speech

I want to distinguish between two main theories of impeaching President Trump. They are impeaching him for what he said about the election and impeaching him for what he told or encouraged people to do about the election’s outcome.

The House of Representative’s article of impeachment mingles the two into a stew it hopes tastes and smells like insurrection. The potpourri is heavy on what Trump said about the election but also contains a few pinches regarding what he said should be done in response.

Only the latter allegations should be considered in determining whether to impeach and remove Trump. A defeated candidate for office should be free to say whatever he wants to about the election. Ideally, such a candidate would concede at some point. That’s the tradition and it’s a noble one.

But there is no obligation, constitutional or otherwise, to concede. A defeated president’s only obligation is to leave office, which Trump will do.

The impeachment article asserts that Trump’s claims about the election are “false.” Some of them, like his claim that he won in a landslide, are blatantly false.

But making false claims about very important matters doesn’t meet the “high crimes and misdemeanors” standard of the Constitution. And it’s a good thing, too. Otherwise, many presidents would have to be impeached.

Suppose Hillary Clinton had been the incumbent president in 2016, instead of the president in waiting. Would it have been an impeachable offense for her falsely to have claimed that Trump collaborated with Russia in order to win the election?

Not in my opinion, and not in the opinion of Democrats, I’m sure. No law prohibits politicians from saying whatever they wish to about an election. And a decent regard for freedom of expression should protect a politician from making claims, whether true or false, about that subject, or any other.

It turns out that there is precedent for impeaching a president for speech, but also for not removing a president so impeached. Josh Blackman and Seth Barrett Tillman remind us that Andrew Johnson was accused in one of his impeachment articles of using “intemperate” and “inflammatory” language that was critical of Congress.

The House passed this article, but the Senate rejected it. Seven Republican Senators opposed impeachment, causing the effort to remove Johnson to fail by one vote.

Five of these Senators denounced the idea of impeaching a president for exercising his right to free speech. According to Blackman and Tillman:

Senator John Henderson of Missouri stated plainly that “the President, like other persons, is protected under” the First Amendment. “He too,” Henderson continued, “has the right to make foolish speeches.”

Senator James Grimes of Iowa admitted that Johnson’s speeches were “indiscreet, indecorous, improper, [and] vulgar.” But he could not “attempt[] to repress the freedom of speech.”

Senator Peter Van Winkle of West Virginia said the First Amendment was “unquestionably of universal application,” even to the President.

Senator Joseph Fowler of Tennessee boasted that Johnson did no “more than exercise that liberty of speech guaranteed to him by the Constitution.”

Senator William Pitt Fessenden of Maine warned that removing the President for his speech would not only “den[y] him a right secured to every other citizen of the republic . . . but might deprive the people of the benefit of his opinion of public affairs.” The President, Fessenden contended, has the right to communicate with the people. And the people have a right to hear those communications.

Historians laud the Republican holdouts for their votes. And rightly so. The five statements quoted above are foundational in a free society.

To remove Trump for making false statements about the election would be an affront to freedom. If Trump is to be removed it should be for what he urged people to do to reverse or thwart Joe Biden’s victory. I will discuss whether Trump should be removed for this in my next post on the impeachment.

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