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At his impeachment trial for inciting insurrection, Donald Trump’s lawyers claimed that Trump’s exhortations to his followers before the attack on the Capitol were protected free speech under the First Amendment. But as 143 other constitutional law scholars from across the political spectrum and I collectively noted, that claim was “legally frivolous.” Moreover, the First Amendment will not protect Trump if he is charged with committing criminal offenses.
The First Amendment does not apply in an impeachment trial because a president (or former president) can be impeached even for lawful conduct if he abused his official power while in office. Impeachment is a political, not a legal, proceeding. As Alexander Hamilton wrote in Federalist No. 65, high crimes and misdemeanors “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”
Thus, the Senate could have convicted and disqualified Trump from holding future office regardless of whether he would have a First Amendment defense in a criminal proceeding. But even if the First Amendment were relevant in an impeachment trial, Trump’s words did not constitute protected free speech. For, as the letter signed by constitutional law scholars noted, Trump had no “First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked.”
The First Amendment Does Not Allow You to Falsely Scream “Fire” in a Theater
A free speech claim is measured under the standard set forth by the Supreme Court in Brandenburg v. Ohio. Trump would have no First Amendment defense if his words were “directed to inciting or producing imminent lawless action and … likely to incite or produce such action.”
Trump had a constitutional duty to “take care that the laws be faithfully executed.” Instead, he encouraged his toadies to violate the law by preventing Congress from fulfilling its constitutional duty to certify the duly chosen electoral votes. Indeed, the rioters succeeded in stopping and delaying the vote count as they stormed though the Capitol.
By preventing Congress from counting the electoral votes, Lead House Manager Jamie Raskin (D-Maryland) noted, Trump “imperiled the very constitutional order that protects freedom of speech in the first place.” The First Amendment is not unlimited. It does not shield the person who falsely yells fire in a theater, causing a panic. Raskin drew an analogy between what Trump did and a municipal fire chief whose job it is to put out fires but who instead orders a mob to set fire to a theater and then watches while it burns.
Trump created a powder keg and lit the match. As Rep. Liz Cheney (R-Wyoming) said, Trump “summoned this mob, assembled the mob, and lit the flame of this attack.” He then stood by and watched the attack without taking action to stop it.
“He could have immediately and forcefully intervened to stop the violence,” House Manager Joe Neguse (D-Colorado) said. “It was his duty as commander in chief to stop the violence and he alone had that power, not just because of his unique role but because they believed that they were following his orders.”
The House Managers methodically documented how Trump exhorted his minions to come to Washington, D.C., on January 6 and “Stop the Steal.” On December 19, Trump tweeted, “Big protest in D.C. on January 6th,” adding, “Be there, will be wild!” At a rally shortly before the rioters stormed the Capitol, Trump harped on the stolen election, calling it “this egregious assault on our democracy.” He said they should “stop the steal” and keep the Democrats from “fraudulently taking over our country.” Trump advised his followers to “show strength” and “walk down to the Capitol,” stating, “you will never take back our country with weakness.” He urged them to violate the law when he said, “When you catch somebody in a fraud, you are allowed to go by very different rules.”
Trump told his supporters to “fight like hell” to “stop the steal” and pointed them directly at the Capitol. The violent mob obliged by breaking into the Capitol and rampaging through the halls of Congress, looking for Vice President Mike Pence and House Speaker Nancy Pelosi, who narrowly escaped their wrath. “That was a mob sent by the president of the United States to stop the certification of an election,” Impeachment Manager and Delegate Stacey Plaskett of the U.S. Virgin Islands, said. “President Trump put a target on their backs, and his mob broke into the Capitol to hunt them down.” Plaskett added, “The insurgents believed they were doing the duty of their president — they were taking his orders.”
The January 6 attack on the Capitol would not have occurred but for the exhortations of Trump. His speech and actions for months leading up to the election corroborate his criminal intent.
Trump spread the big lie: that the election was stolen from him. He filed dozens of frivolous lawsuits; threatened election officials in battleground states; tried to disenfranchise people of color in counties and jurisdictions with primarily Black and Brown populations; pressured the Justice Department; and bullied Pence to violate his constitutional obligation. For months, Trump primed his followers by voicing false claims of voter fraud and said he would only lose if the election was stolen. He urged his supporters to “stop the steal.”
Capitol Police were viciously attacked by the violent mob, who killed one of them and caused two others to die by suicide. At least 73 members of the Capitol force and 65 members of the Metropolitan Police were injured. Officers suffered cracked ribs, smashed spinal discs, multiple concussions, and the loss of an eye and a finger-tip. Participants in the pro-Trump mob used Tasers and bear mace and hit officers with metal poles. One officer had a heart attack from being tasered so many times.
Trump Resisted Pleas to Stop the Rampage at the Capitol
As Trump watched the insurrection on television, he was reportedly “delighted” that his minions had stopped the count. He resisted pleas from family and Congress members to end the violent rampage. Rep. Jaime Herrera Beutler (R-Washington), one of the 10 Republicans who voted in the House of Representatives to impeach Trump, described a call that Kevin McCarthy, the top House Republican, relayed to her. When McCarthy implored Trump to stop the mob, Trump responded that the people attacking the Capitol were “more upset about the election than you are.”
Trump called Sen. Tommy Tuberville (R-Alabama) during the attack on the Capitol to urge him to object to certification. Tuberville told him that they were evacuating Pence. It was all over the news that members of the pro-Trump mob were yelling, “Hang Mike Pence” and “Mike Pence is a traitor,” as they stormed through the halls of Congress and erected a noose in front of the Capitol. But rather than acting to protect his vice president, Trump inflamed them further by tweeting that Pence was a “coward” for refusing to stop the certification of votes.
At no time did Trump mention calling the National Guard to restore order. It wasn’t until the riot had been going on for more than 3 1/2 hours that Trump finally gave the rioters permission to go home, saying, “Remember this day forever.” He ended his message with, “We love you. You’re very special.”
The First Amendment will not shield Trump from criminal liability in a criminal case either. The evidence is overwhelming — not only to have convicted Trump in the impeachment trial, but also to find him criminally guilty of inciting rebellion or insurrection and other federal and state offenses.
Copyright Truthout. Reprinted with permission.
Marjorie Cohn is professor emerita at Thomas Jefferson School of Law, former president of the National Lawyers Guild, deputy secretary general of the International Association of Democratic Lawyers and a member of the advisory board of Veterans for Peace. Her most recent book is Drones and Targeted Killing: Legal, Moral, and Geopolitical Issues.