Not every corner of government or civil society has risen to the occasion. Congress has to date shown little interest in engaging explicitly with the president’s rhetoric. In late 2017, Representative Al Green introduced articles of impeachment charging President Trump with supporting “white supremacy, bigotry, racism, anti-Semitism, white nationalism [and] neo-Nazism,” and accused him of “inciting hate and hostility” by “sowing discord among the people of the United States, on the basis of race, national origin, religion, gender, [and] sexual orientation.”
But those articles were quietly voted down in the summer of 2019. Although the House did formally impeach the president last fall, the impeachment charges that were actually approved by vote made no reference to the president’s public speech; such speech was similarly sidelined in the House proceedings and Senate trial. This was a missed opportunity: Presidential speech has played a significant role in every other major presidential impeachment effort in our history, most notably in the case of Andrew Johnson, whose dangerous and demagogic rhetoric actually formed the basis of the tenth article of impeachment approved by the House of Representatives against him. With rare exceptions, members of the president’s political party in Congress have proved remarkably unwilling to use their own speech platforms to condemn or even criticize the president’s rhetoric.
And courts have so far had a mixed record. The Supreme Court has been all too willing to set aside presidential speech as immaterial—in the 2018 travel-ban case, for example, and in this term’s Deferred Action for Childhood Arrivals decision, in which the majority, although setting aside the DACA rescission as inconsistent with the Administrative Procedure Act, also rejected the argument that the rescission may have been driven by discrimination. But a number of lower courts have examined presidential speech in evaluating the motives of various presidential actions. And back in 2018, Chief Justice John Roberts issued a pointed statement condemning presidential rhetoric: After President Trump criticized a district-court ruling as coming from “an Obama judge,” Roberts responded in an unusual rebuke, in which he insisted, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”
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Trump’s suggestion that he might seek to postpone the November election has drawn criticism from new quarters, including harsh condemnation in an op-ed by the prominent conservative and Federalist Society co-founder Steve Calabresi, who described the tweet as “fascistic” and suggested it was “grounds for the president’s immediate impeachment again by the House of Representatives and his removal from office by the Senate.” Whether or not it will take another run at presidential impeachment predicated in part on the president’s words, Congress does have other tools at its disposal, and it could use those to respond to the president’s dangerous and destructive speech. Just a few defecting members of the president’s party in the Senate could place holds on nominees, or block all legislation, if the president again uses threats of force or actual force against peaceful protesters. Congress could agree to provide additional funding to states seeking to facilitate safe voting during the pandemic, ensure adequate funding to the post office (and engage in active oversight of that agency, in light of grave concerns about its political leadership), and lawmakers could use their individual speech platforms to encourage participation in the election, either by absentee or in-person voting, depending on individual circumstances. Courts, too, can heed Justice Sonia Sotomayor’s concurrence in the DACA case, in which she criticized the majority’s “blinkered approach” of disregarding presidential speech.