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.”