Freedom of Speech Doesn’t Mean What Trump’s Lawyers Want It to Mean

The First Amendment does not limit the removal and disqualification powers conferred on Congress by the Constitution.

An illustration of Impeachment articles and the First Amendment text.
Getty / The Atlantic

About the authors: Peter D. Keisler is an appellate lawyer and former acting attorney general of the United States. Richard Bernstein is an appellate lawyer who clerked for Justice Antonin Scalia.

Front and center in former President Donald Trump’s defense this week will be the argument that convicting him and disqualifying him from holding future office would violate his First Amendment rights—that it would essentially amount to punishing him for speaking his mind. His new lawyer, David Schoen, has warned that convicting Trump “is putting at risk any passionate political speaker, which is against everything we believe in in this country.”

That is wrong. Even if the First Amendment protected Trump from criminal and tort liability for his January 6 exhortation to the crowd that later stormed the Capitol, it has no bearing on whether Congress can convict and disqualify a president for misconduct that consisted, in part, of odious speech that rapidly and foreseeably resulted in deadly violence.

To start, let’s examine how breathtaking Trump’s argument is. His advocates are relying on the 1969 Supreme Court case Brandenburg v. Ohio, which held that the First Amendment prohibits criminal liability for advocating violence that is not imminent. According to their theory, Congress could not impeach, convict, remove, or disqualify a president who, like Clarence Brandenburg, spoke at a Ku Klux Klan rally in a white hood, advocated violence, used the N-word repeatedly in declaring that African Americans should be forcibly returned to Africa, and proclaimed that “the Jew” should be sent to Israel.

Nor, under Trump’s argument, could Congress use its powers if the same president burned an American flag on national television to demonstrate contempt for the country he or she had been chosen to lead. Nor could Congress use its powers if the same president wore a swastika while leading a Nazi march through a Jewish neighborhood.

These supposed limitations on Congress’s powers are not merely contrary to common sense; they are without any basis in law. Courts have held that none of those activities can constitutionally be criminalized. But as the University of Missouri law professor Frank Bowman exhaustively demonstrated in The Atlantic in 2019, the impeachment, conviction, removal, and disqualification powers of Congress do not require that the president, or any other federal official, has committed a crime. The phrase “high Crimes and Misdemeanors,” which Article II, Section 4 of the Constitution declares impeachment, conviction, removal, and disqualification to remedy, dates back to 1386. As the nation’s Founders knew, that term had been used repeatedly for four centuries to remove and disqualify officials for heinous conduct that was committed while in office but was not a crime. For example, in a celebrated instance, Massachusetts removed its chief justice in 1774 for accepting a royal salary—an act that was politically disloyal, but not a crime. In 1788, James Madison told the Virginia ratifying convention that abusing the pardon power—also not a crime—would be impeachable. In “Federalist No. 65,” Alexander Hamilton likewise wrote that “the abuse or violation of the public trust” would be impeachable. And, in the more than two centuries since the Constitution was ratified, multiple officials have been impeached, convicted, removed, and disqualified for official conduct that was heinous but not criminal. Indeed, President Andrew Johnson was impeached, and President Richard Nixon would have been impeached and convicted, on certain counts that did not allege a crime. So while the First Amendment might protect a former president from criminal and tort liability for his speech, that same speech can still demonstrate his “abuse or violation of the public trust,” warranting conviction and disqualification by the Senate.

But there is yet another reason why the First Amendment is no defense against impeachment, and that is that a central object of the Constitution was to restrain a government leader who was a “demagogue.” And essential to being a demagogue is engaging in “passionate political” speech.

In the first Federalist Paper, Hamilton wrote, “History will teach us … that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.” And he reiterated in “Federalist No. 85,” the last Federalist Paper, that a core aim of the Constitution was to prevent “the military despotism of a victorious demagogue.”

Madison began drafting the Bill of Rights within months of the publication of Federalist No. 85. In what became the First Amendment, Madison built and expanded on the protections already established in English common law. Nothing in that tradition, or in the congressional or ratifying debates on the Bill of Rights, suggested that protections for free speech precluded impeaching, convicting, removing, and disqualifying a senior public official who engaged in the very demagoguery the Constitution was designed to safeguard against.

Accordingly, although the First Amendment’s guarantee of freedom of speech limits the scope of permissible criminal prosecutions and tort suits, it does not limit any of the separate removal and disqualification powers conferred by the Constitution. The most frequently used of these powers is the president’s right to remove senior executive officers—that is, those with administrative or policy-making authority. Every president has exercised this power, often in response to political speech in a policy statement the official had made that would be protected by the First Amendment from criminal and tort liability. No one would argue that a president cannot remove a senior executive officer for that officer’s expression of political views, much less for odious expression that rapidly and foreseeably led to lethal violence.

First Amendment freedom of speech likewise does not limit the Senate’s historic role in the confirmation of senior federal officers. It’s never been suggested—nor could it plausibly be—that the Senate cannot refuse to confirm an executive-branch nominee on the grounds that the nominee previously made odious and dangerous statements. But under the view of Trump and his advocates, if such individuals made such statements after being confirmed, Congress could not use its impeachment and conviction powers to remove and disqualify them. How could the First Amendment permit the Senate to decline to confirm a senior officer based on prior, odious, dangerous speech but then preclude it from removing or disqualifying the same official for making the same (or worse) statements while in office?

There is no serious risk that Congress will abuse its removal and disqualification authority, particularly in the case of presidents. Presidential impeachments are exceptionally rare events, and in the 230 years of American history, none has yet resulted in a Senate conviction. That history confirms that Hamilton was correct when he predicted in “Federalist No. 66” that the requirement that two-thirds of the Senate support conviction would ensure that “the security to innocence … will be as complete as itself can desire.” Congress plainly understands the gravity of its powers in this area and does not easily or lightly exercise them.

Consider that, on December 6, 2017, a resolution was introduced in the House to impeach then President Trump. The resolution was based on his reference to “very fine people” in connection with the by-then-concluded violence in Charlottesville, and other statements the resolution characterized as conveying various forms of bigotry. The House rejected consideration of that resolution on the same day by voting 364–58 to table it. We would have voted with the majority, as those statements did not cause violence or spark an attempt to obstruct the peaceful transfer of power.

At least four things distinguish Trump’s January 6 address. First, it was made to a mob that he had called to Washington, D.C., and then instructed to march to the Capitol. Second, he used words that foreseeably could cause and rapidly did cause violence, including “If you don’t fight like hell, you’re not going to have a country anymore.” His speech resulted in our nation’s first non-peaceful transfer of power in modern times. Third, Trump, during his remarks, repeated lies he had been promoting for weeks about nonexistent voter fraud. Even the First Amendment does not protect “knowing lies” that cause foreseeable violence that interferes with government functions and personnel from criminal or civil liability. Fourth, Trump’s speech was part of a course of conduct to override the 2020 presidential election results outside the court system. That course of conduct included attempts to extort Georgia’s secretary of state to “find” approximately 12,000 more Trump votes, to intimidate Vice President Mike Pence to violate the Constitution and refuse to count Biden electoral votes from six states, and to misuse the Department of Justice to subvert Georgia’s election results.

There is no legal or other basis for inventing unfounded obstacles to conviction and disqualification by Congress of a president for such demagoguery and other misconduct. To the contrary, there are important reasons not to disable Congress in that way. History shows that republics can perish when they give a potential authoritarian a pass without serious consequences. As the wise Justice Robert Jackson explained in his famous dissent in Terminiello v. Chicago (1949), “The choice is not between order and liberty. It is between liberty with order and anarchy without either.” To protect our republic, the Senate may and should convict and disqualify a president whose official misconduct included odious speech that rapidly and foreseeably caused lethal violence.