On Jan. 11, nine days before his term of office comes to an end, the House of Representatives voted to impeach President Donald Trump (a second time).
The impeachment resolution states that Trump “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States, in that: … In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials.”
That is, the primary ground for impeachment dates back to Trump’s statements following the election in early November. They’re pinned on the president’s many statements that the election was fraudulent, and that he had won. According to the impeachment resolution, these statements were “false.”
In other words, Trump was guilty of “criminal” incitement—impeachment requires a “high crime or high misdemeanor”—for saying the election was fraudulent, but vice president-elect Kamala Harris was not guilty of criminal incitement for saying the George Floyd riots will run past Election Day and “should not” stop, nor for explicitly encouraging Americans to contribute funds to bail out rioters charged with violent crimes.
Putting the stunning hypocrisy aside, the president can’t possibly be impeached based on his claims, however strident, of election fraud. Such statements are quintessential “political speech”—that is, they are his view or opinion on a current political debate—and as such are protected by the First Amendment. Political speech is protected by the First Amendment, and such speech can’t both be protected under the First Amendment and constitute a crime, let alone a “high” one.
Said differently, the Democrats are saying Trump committed criminal incitement because his claim that he won is wrong. If he were right—and the election was truly fraudulent—no criminal incitement would have occurred, according to the Democrats. Sorry. That’s not the way incitement works.
The Supreme Court’s Rejection of the ‘Clear and Present Danger’ Test
In the landmark 1969 First Amendment case Brandenburg v. Ohio, the Supreme Court rejected the “clear and present danger” test for punishable speech, likely to incite violence.
There’s no viable theory under which Trump’s statements about election fraud are not protected political speech. He was and remains free to contend that the election was fraudulent, that he, not Biden, won, and that he won by a “landslide.”
Nor does the president’s exercise of his First Amendment rights provide a basis for a declaration of his inability to perform his duties under the 25th Amendment. Again, a sitting president exercising his First Amendment rights can’t form a basis to declare him unable to perform his duties.
The Jan. 6 Speech-based Article
The Articles further state that the president criminally incited violence by his remarks made in his Jan. 6 speech:
“Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that ‘we won this election, and we won it by a landslide’. He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: ‘if you don’t fight like hell you’re not going to have a country anymore’. Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session’s solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.”
Again, as to the “landslide-win” comment, that is quintessential protected political speech.
As for the “fight like hell” remark, I’m reminded of Facebook’s now infamous—“missing context”—foul. No honest person would regard the “fight like hell” comment to mean, literally, storm the Capitol.
In short, nothing so far alleged comes close to criminal incitement.
The Raffensperger Call Article
The Articles of Impeachment go on to state that the president tried to “subvert and obstruct the certification of the results” of the 2020 election by his “prior efforts [which] included a phone call on Jan. 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘find’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.”
How on earth could a private call between Trump and Raffensperger possibly incite anything? Only Trump and Raffensperger heard the call live, and neither one of them stormed the Capitol.
While I’m confident “context” is missing here too, and I don’t believe for one moment that Trump asked Raffensperger to manufacture votes in his favor, Raffensperger released a tape of the private call. How can Trump possibly be responsible for that?
As for “efforts to subvert and obstruct the certification of the results”—that is not inciting violence. Nor is it “subversion or obstruction.” There are constitutionally prescribed procedures (under the 12th Amendment) for resolving disputed electoral votes. Calling for objections to electoral votes from states where there are dual slates of electors is not a crime—it’s a protected legislative process mandated by the Constitution and federal statute (and protected by the Speech and Debate Clause).
In short, the claimed offenses are protected speech or political processes and thus do not and cannot constitute a crime, let alone a “high” one.
The Senate Cannot Hold a Trial Following Biden’s Inauguration on Jan. 20
Article II, Section 4 provides: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Because impeachment must result in the removal of the president from office, the Senate can’t hold an impeachment trial of Trump after Biden is inaugurated on Jan. 20. Most constitutional scholars agree with this plain reading including Harvard professor emeritus Alan Dershowitz.
Furthermore, the Senate doesn’t come into session before the inauguration, and Senate Majority leader Mitch McConnell (R-Ky.) has declined to call a special session before then. That makes an impeachment trial dead on arrival.
The Impeachment Resolution Shows Democrats Are Worried the Election Really Was Fraudulent
So why did the House Democrats (along with some House Republicans) vote for the impeachment resolution?
I have two answers.
First, the last paragraph of the Articles of Impeachment reads:
“Wherefore, Donald John Trump, by such conduct, has demonstrated that he will remain a threat to national security, democracy, and the Constitution if allowed to remain in office, and has acted in a manner grossly incompatible with self-governance and the rule of law. Donald John Trump thus warrants impeachment and trial, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.” [emphasis added]
In other words, if an incumbent president is impeached and convicted (while incumbent) he’s both removed from office and disqualified to hold and enjoy any office under the United States thereafter. But the Senate can’t hold an impeachment trial of a former president—because he can’t be removed from an office he no longer holds—in order to gain the disqualification “add on.”
That is, the Democrats are going to try to have the Senate, once they gain control of it, hold an impeachment trial of former President Trump in order to disqualify him from running in 2024. This will, in my opinion, never hold up in the Supreme Court. The Constitution is clear.
But this shows that Democrats are worried—very worried—about Trump’s election bid in 2024. That is, they fear they will never get away with the alleged rampant (or as rampant) election fraud the next time around (in the absence of the pandemic) and so they’re trying to take out Trump now—the Constitution be damned.
Yet, if Biden had truly and honestly won, they wouldn’t have this fear, but deep down they know he didn’t.
Ironically, if the Democrat-controlled Senate—with Harris being the tie-breaker—elects to hold an unconstitutional post-inauguration impeachment trial, contending Trump incited violence by making “false” statements about election fraud, Trump could mount a defense that his statements were true, and thereby achieve a public hearing on the evidence of election fraud.
Second, notice how the entire news cycle has shifted away from election fraud to impeachment. So, regardless, the impeachment resolution, however doomed to failure, served a partisan political purpose.
Stephen B. Meister is a lawyer and an opinion writer. Twitter @StephenMeister. Opinions expressed here are his own, not his firm’s.
Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.