BY PETER SCHEER
Does the First Amendment’s free speech guarantee protect Donald Trump from conviction in this, his second, impeachment trial? No, in my opinion, but not for the reasons given by many of the President’s critics, including the impeachment managers in Trump’s impeachment trial for inciting riot and insurrection.
If the ex-president were being prosecuted criminally in federal court, the First Amendment would apply with full force, as it would if you or I were being prosecuted. The government in a criminal setting would have to show that Trump’s speech outside the White House on January 6 was “directed to inciting or producing imminent lawless action” and was, in fact, “likely to incite or produce such action.” That is the gist of the Supreme Court’s unanimous decision in Brandenburg v. Ohio, a 1969 case that overturned the conviction of a KKK member.
The Brandenburg test was meant to set a high bar against government efforts to criminalize advocacy, especially political advocacy, that is controversial and unpopular. Trump’s January 6 speech to supporters who, minutes later, would run riot at the Capitol comes close to meeting that test . . . but not close enough. Why? Because Trump did not explicitly call for an assault on Congress, and his repeated exhortations to “fight like hell” were punctuated with a warning to “make your voices heard” and to do so ”peacefully and patriotically.”
Trump, however, is not a defendant in a criminal prosecution. (Not yet at any rate.) He is the subject of an impeachment proceeding. And while the First Amendment is not irrelevant in an impeachment proceeding — contrary to the views of many law school professors who have opined on the Trump case — freedom of speech does not apply as rigorously as in a criminal case.
Impeachment, as Mitch McConnell famously explained, is a political, not a judicial, proceeding. Due process principles, fundamental to a criminal case, apply only weakly or not at all. Examples: an unbiased and neutral jury; need for proof beyond a reasonable doubt; hearsay and other rules of evidence. Ditto for the First Amendment.
Trump’s free speech rights are also qualified by legal obligations, based on his status as president, that do not apply to ordinary citizens: his responsibilities as chief executive and commander in chief; the obligations of his oath of office to see that the laws are faithfully executed. In legal terms, Trump’s relationship — any president’s relationship — to the American people is that of a fiduciary. A president must look out for the people’s interest —and that means, first and foremost, that a president must not lie to them.
Lying by a president, a clear breach of his fiduciary responsibility, is NOT protected by the First Amendment.
Donald Trump’s impeachable offense, his high crime and misdemeanor, was promulgation of the “Big Lie” that the 2020 election was stolen from him. His invention and constant repetition of this lie, and his resulting efforts to block a peaceful transition of power, created the predicate for the January 6 rally and riot by his supporters. The First Amendment, I believe, does not stand in the way of Trump’s impeachment and conviction on these grounds.
Peter Scheer is president of the board of directors of the First Amendment Coalition and is the organization’s immediate past executive director. The views expressed here do not necessarily reflect the opinions of the board.