At the impeachment trials outset, lawyers for former President Donald Trump filed a 78-page brief at arguing that he should not be convicted by the Senate. Trump is charged with inciting an insurrection through various statements that allegedly encouraged the January 6 putsch targeting the US Capitol.

The briefs primary arguments are constitutional. It claims that the Constitution does not permit an impeachment proceeding against a former official. And the brief also argues that Trump is immune from impeachment because the actions which led to that impeachment are protected by the First Amendment.

The first argument is, at least, not entirely ridiculous. While the majority view among scholars is that a former official may be impeached and convicted by the Senate, there are non-frivolous arguments that a former president is beyond the impeachment power.

But the claim that impeaching Trump violates the First Amendment is risible. There are at least three separate reasons why the First Amendment does not protect Trump.

The first is that impeachment is, essentially, a human resources matter. The Constitution provides that Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office. So, with Trump out of office, the only question in his second impeachment trial is whether he should be permanently disqualified from certain federal jobs.

As the Supreme Court explained in Connick v. Myers (1983), the States interests as an employer in regulating the speech of its employees differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. Though the governments power to discipline employees (or former employees) for aberrant speech is not absolute, it is broad enough to allow Trump to be disqualified from office.

The second reason Trump cannot invoke the First Amendment is that many of the statements he made, which allegedly incited the January 6 attack on the Capitol, are lies. Trump accused Democrats of trying to steal the election, and he falsely claimed that he overwhelmingly won an election that he lost by over 7 million votes.

As the Supreme Court held in New York Times v. Sullivan (1964), the First Amendment does not protect individuals from defamation suits if they make a false claim with knowledge that it was false or with reckless disregard of whether it was false or not. For the reasons explained below, a similar rule should apply to Trump.

Finally, some of Trumps statements such as a January 6 speech where he told his supporters to fight like hell and that youll never take back our country with weakness. You have to show strength and you have to be strong may constitute incitement to imminent illegal action, which is not protected by the Constitution.

Although the First Amendment provides some protection to government employees, those protections are much weaker than those afforded to private citizens, at least when the government seeks to fire or otherwise take a job action against an employee.

Imagine, for example, that a public school hires someone to teach algebra, but this teacher refuses to follow the curriculum and instead spends their class time lecturing their students about 16th-century Japanese art. The First Amendment protects a private citizens right to speak about Japanese art, but the school district could discipline or even fire this teacher for failing to do their job properly even though their only offense was to engage in speech that is normally protected by the Constitution.

Moreover, while the First Amendment provides a relatively robust shield against workplace discipline to rank-and-file government employees, the Constitution offers very little protection to senior officials in political jobs. As a private citizen, for example, Secretary of State Tony Blinken is allowed to criticize President Joe Bidens foreign policy. But as one of Bidens top lieutenants, Blinken may be fired immediately if he makes a disparaging remark about Bidens policies.

As the Supreme Court explained in Branti v. Finkel (1980), if an employees private political beliefs would interfere with the discharge of his public duties, his First Amendment rights may be required to yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Thus, Trumps private political belief that he, and not the lawful winner of the 2020 presidential election, should be president must yield to the States vital interest in maintaining governmental effectiveness and efficiency.

Trumps lawyers, for what its worth, primarily rely on the Supreme Courts decision in Bond v. Floyd (1966), which held that the Georgia House of Representatives violated the First Amendment when it prevented state Representative-elect Julian Bond from taking his seat ostensibly because of statements Bond made criticizing the Vietnam War. (Bond, an important civil rights leader, was one of the first Black representatives elected in Georgia after the passage of the Voting Rights Act of 1965; its fairly likely that the real reason he was excluded had less to do with his opinion of the war than the color of his skin.)

The Bond decision is more than a half-century old, and since then weve seen a whole line of cases involving First Amendment protections for government employees, including the Branti case. So its not entirely clear that Bond remains good law. To the extent that Bond is still valid, however, Trumps lawyers argue that cases like Branti only apply to appointed political officials and that Bond provides much more robust protections to elected officials.

Yet even if we accept that elected officials enjoy greater First Amendment protections than political appointees, the Bond case does not help Trump escape impeachment.

In 1960, civil rights activists ran an advertisement in the New York Times alleging that Alabama police used brutal tactics to suppress protests. In response to this ad, an Alabama police official filed a defamation suit against the Times, pointing to minor factual errors in the advertisements text. An Alabama jury handed down a $500,000 verdict against the Times.

But the Supreme Court tossed out that verdict in New York Times v. Sullivan (1964), a seminal decision holding that the First Amendment provides strong protections against defamation lawsuits that threaten free speech. Yet, while these protections are quite robust, especially when a defamation suit involves statements about a public figure that regard a matter of public concern, they are not unlimited.

At the very least, someone can still successfully be sued for defamation if they make a false statement with knowledge that it was false or with reckless disregard of whether it was false or not, according to the New York Times decision.

Although New York Times was a case about defamation and not about the First Amendment rights of elected officials, the Court relied heavily on New York Times when it decided Bond. In explaining why Rep. Bonds rights were violated, the Court said that the central commitment of the First Amendment, as summarized in the opinion of the Court in New York Times Co. v. Sullivan is that debate on public issues should be uninhibited, robust, and wide-open.

Under Bond, the New York Times principle was extended to statements by a legislator.

Two years after Bond, the Court handed down its decision in Pickering v. Board of Education of Township High School District (1968), which established the modern framework governing First Amendment suits by government employees. Pickering involved a public school teacher, not an elected official, but it provides additional support for the view that government employees do not have a First Amendment right to lie.

In Pickering, the Court held that absent proof of false statements knowingly or recklessly made by him, a teachers exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.

New York Times, Bond, and Pickering, in other words, all suggest that a government employees First Amendment rights regardless of whether that employee is elected do not include a right to knowingly make false statements, or to make statements with reckless disregard as to whether they are true or not.

So when Trump riled up his supporters by falsely claiming that the 2020 election was stolen from him, he was not protected by the First Amendment.

In Brandenburg v. Ohio (1969), the Supreme Court held that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

Thus, while speakers, including Trump, are protected even if they advocate illegal actions, this protection has limits. If such advocacy is made with the intent to incite imminent lawless action, and if such action is likely to result from a persons speech, then that speech is not protected by the First Amendment.

Brandenburg sets a high bar for incitement prosecutions. But Trumps statements immediately before the January 6 putsch were so egregious that they may overcome this high bar. In a speech that he gave right before his supporters attacked the Capitol, Trump told them that if you dont fight like hell, youre not going to have a country anymore, that they need to take back our country, and that they cant show weakness and have to be strong.

Writing in the Washington Post, Harvard law professor Einer Elhauge argues that these statements constitute constitutionally unprotected incitement, even under Brandenburg:

Although Trump tried to protect himself by stating that he was sure that the crowd would peacefully march to the Capitol, that does not alter the fact that he was inciting the crowd to forcibly stop Congress from counting the certified electoral votes once they got there.

Trump thus clearly incited lawless action (obstructing the operations of Congress is a crime) that was imminent (right after the speech, a short walk away). That he wanted to incite such lawless action is confirmed by reporting that for hours he watched the Capitol attack with pleasure and did not take any steps to stop it by calling out the National Guard or by urging his supporters to stand down.

Again, its far from clear that Trump could be prosecuted in a criminal court for his statements Brandenburg makes it extraordinarily difficult for prosecutors to win such cases. But thats not the issue in Trumps impeachment trial.

The issue in Trumps impeachment trial is whether, given the fact that the government has broad authority to make human resources decisions under the First Amendment, Congress may conclude that Trumps statements were so beyond the pale that he should be disqualified from holding high federal office in the future.

Setting aside these legal flaws in Trumps First Amendment argument, theres also a profound practical reason public officials should be subject to impeachment, even if theyve done nothing more than give an illiberal or anti-democratic speech.

Imagine that someday in the future, a new president is elected after campaigning on a fairly mainstream platform. Then, in the presidents inaugural address, they reveal that the entire campaign was a charade: I am a great admirer of Nazi Germany, the new president declares in their inaugural address, and I plan to use my presidency to build a Fourth Reich.

Should Congress really have to wait until this Nazi president takes some affirmative step to implement this agenda before they can be impeached and removed from office?

As George Mason University law professor Ilya Somin writes, the implication of Trumps argument that he cannot be impeached for his speech is that Congress could not impeach and remove a president who openly proclaimed his intention to turn the United States into a communist or fascist dictatorship, because speech advocating despotism is protected against criminal punishment by the First Amendment if uttered by a private citizen.

But Trump is wrong that he is protected by the First Amendment. The government has far more leeway when it makes personnel decisions than it does when it regulates speech by private citizens. And even if Trump had simply spoken as a private citizen, there is a strong argument that his conduct was so egregious that it could be prosecuted as incitement.

Read the original post:

Trumps claim impeachment violates the 1st Amendment and Brandenburg v. Ohio, explained - Vox.com

Social justice movements and conspiracy theories have become a hallmark of our time, but how do we know which inflammatory statements are legally protected and which are not?

Sociology Professor Nella Van Dyke sheds light on the legal and social ramifications of free speech in this Q&A. Van Dyke is an expert on social movements in relation to hate crimes, with recent studies of the movement against sexual assault, college student protest, LGBTQ+ college student experiences and racist hate crimes on campus. Her work has been published in leading journals including Social Forces, Social Problems and the American Sociological Review. She has co-edited two books: Strategic Alliances: Coalition Building and Social Movements and Understanding the Tea Party Movement.

Van Dyke joined UC Merceds sociology department in 2008 and is a founder of the departments undergraduate and graduate programs. She teaches courses in sociological theory, hate crimes, sexuality and statistics.

The Constitution itself does not define free speech, but the First Amendment of the Constitution says Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Because of this, every person in the United States has freedom of speech.

Because of the First Amendment, most speech is protected in the U.S., but not all types.

Speech that threatens another individual, defames their character in a manner that causes damage, is considered obscene, incites violence or creates a hostile environment is illegal.

The goal of hate speech is to silence and exclude. Hate speech is technically legal, unless it occurs in a repeated way in a location which the individual cannot avoid, thus creating a hostile environment, or, if it is directly threatening to the individual who hears it. Note that hate speech can be used as evidence in a hate-crime case. If hate speech occurs during the commission of a crime, it can be used as evidence that the crime was a hate crime, though the speech itself is not illegal.

There is no question that racist and other bigoted speech is harmful to marginalized students and harmful to the university as a whole. The problem, however, is that hate speech is difficult to define. Some colleges have enacted anti-hate speech policies, but ironically, these have almost always ended up being used against the students they were intended to protect.

If we allow authorities to enact laws against hate speech, they may use these laws against those seeking social justice. For example, during the 1800s, many Southern states in the U.S. made it illegal to speak out against slavery because they said it would incite violence. While it is understandable that many members of our community would like to see hate speech banned either on campus or by state or federal governments, these policies are unlikely to hold up in court, and we have to be careful about how much power we give authorities over us.

The courts are very consistent in their rulings on free speech. Decisions and definitions of what speech is allowed do change over time, but not very quickly, and challenges that go against established precedent are not very likely to succeed.

UC Merceds principles of community call for all of us to treat one another with dignity and respect, and to be civil when engaged in dialogue. Therefore, we should all try to avoid speech that dehumanizes, disparages or hurts another person. In terms of what is legal, we have more freedom. Legally, we should avoid threatening a specific individual with harm, trying to get others to commit crimes or acts of violence, or repeatedly using hate speech around an individual or particular group of individuals. However, we can all do better than that by following UC Merceds principles of community and encouraging others to do so.

Only government entities are required to follow the direct limits imposed by the Constitution. Private actors must follow the law, but not the directives described in the Constitution. Public universities must therefore allow free speech, including hate speech. Private institutions, including businesses and private colleges and universities, can enact policies limiting speech, including anti-hate policies. Private citizens can do what theyd like in private (e.g., at home), as long as they obey the law. When they are acting within an institutional space, they must follow the rules of the space. Thus, an individual at a public university has the right to free speech and cannot get penalized for hate speech (unless it includes a direct threat or otherwise breaks the law), while someone on a private college campus could face disciplinary action for hate speech if it violates the campus speech policies.

As a private company, Twitter has the right to decide what content or users it wants to allow. Therefore, legally it had the right to suspend Trumps account. Twitter states that it banned his account because it determined that his tweets violated its policy against the glorification of violence. Twitter decided that his tweets could inspire others to replicate violent acts and determined that they were highly likely to encourage and inspire people to replicate the criminal acts that took place at the U.S. Capitol on January 6, 2021. Its also possible that Twitter was concerned about liability because it is illegal to provide resources to those aiming to overthrow the U.S. government and it is illegal to participate in inciting violence.

Social media users can do research on the platforms terms of service and posting policies. Users should be aware that even if they have the right to post almost any content, the platforms have algorithms that decide what content to promote. Facebooks algorithm, for example, promotes content that evokes strong emotions, and therefore has been found to amplify conspiracy theories and fake news. Twitter, Facebook and Tiktok have all recently released information about their algorithms in an effort to increase public trust, and users can find these online. Ultimately, Im not sure anyone can be 100 percent certain that their right to free speech is being fully respected, because these are private companies that are not bound by the First Amendment.

Read the rest here:

Q&A: Sociologist with Specialty in Right-Wing Movements on Free Speech and the First Amendment | Newsroom - UC Merced University News

According to the logic of a bill currently under consideration in the Missouri House, a churchs religious freedom rights should be overruled since some people may want to show up with a gun. Rep. Ben Baker (R-Newton) argued during a House General Laws Committee hearing Monday (Feb. 8) that a persons natural right to a gun should supersede a religious communitys right to adopt and communicate its beliefs. As a Baptist minister, I find this bill unnecessary, unconstitutional, and dangerous.

Missouri law currently automatically bans concealed weapons from houses of worship unless an individual receives the consent of the minister or person or persons representing the religious organization that exercises control over the place of religious worship. This makes sense. A religious community should be able to define for itself if they desire for individuals to bring guns into their holy place.

But Bakers HB 359 would switch the default position so that individuals with a concealed carry endorsement or permit could automatically bring a firearm into a house of worship unless that religious group posted significant signs at every entry. A church, synagogue, mosque, or other house of worship would not be able to determine its own policy regarding concealed guns without either accepting weapons or posting government-mandated signs on their sacred space.

The Second Amendment should not trump the First Amendment. Some groups hold deep religious convictions that lead them to oppose violence and weapons of any kind. Thus, Missouri legislators should reject a bill that targets those sincerely-held religious beliefs.

Oddly, Bakers bill only attempts to change the status of houses of worship, meaning many other locations would remain places where one cannot bring a concealed weapon without proper consent like a liquor store or a riverboat gambling operation or an amusement park. So, Bakers bill acknowledges by default that limitations on concealed carry do and should exist.

If passed, this bill would give liquor stores, gambling boat operations, and amusement parks more rights than churches to decide about guns on their premises even though houses of worship are protected by the First Amendment more than those entertainment businesses. This targeting of religious communities is wrong.

Theres not even a reason for Bakers bill because people can already bring their concealed weapons into churches. Baker admitted during testimony that he does since his pastor allows it. A member of the committee even said he used to preach from a pulpit with a concealed gun strapped on. If a religious community wishes to allow concealed weapons, they already have that right. And if a house of worship doesnt want weapons in their building, someone who disagrees with that decision is free to worship elsewhere.

The provision in Bakers scheme of allowing a house of worship to ban guns by posting signs actually creates even more problems. Controlling the welcome message that congregations would have to post in prominent locations invites constitutional challenges. In fact, then-St. Louis Catholic Archbishop Robert J. Carlson threatened to sue if a similar bill passed in 2018.

Pastors, rabbis, and religious leaders should not be compelled by the government to place signage in our sacred places prohibiting activity we may not want to allow on our own private property, he said at a press conference with Jewish, Baptist, Episcopalian, Lutheran, Methodist, and other religious leaders.

Despite the overwhelming opposition from faith communities across the state, this bad bill keeps popping back up. Among the 40 people who submitted official testimony against Bakers bill for Mondays hearing were Baptist, Episcopalian, Methodist, and Presbyterian ministers; a Jewish rabbi; a representative from the Missouri Catholic Conference; and several others who identified themselves as a member of a religious congregation. And Ive heard from pastors across the state who find this bill an offensive assault on their rights.

But Baker couldnt name a single denominational group in the state supporting his measure. His faith in guns should not veto the clear public witness of numerous faith leaders. Bakers remedy is clearly worse than the disease that isnt even an ailment.

We have enough real problems for lawmakers to tackle this session without them trying to push guns into houses of worship. So, I pray they will defeat this dangerous bill.

Rev. Brian Kaylor is editor of Word&Way and associate director of Churchnet (a statewide Baptist network of churches).

Read more:

Opinion: Guns shouldn't trump the First Amendment - The Missouri Times

by: Emily Cervarich and Victoria Holmes

GREENVILLE, N.C. (WNCT) Former President Donald Trumps second impeachment trial began in the Senate Tuesday afternoon. It comes just weeks after Joe Biden was sworn in as the 46th President of the United States and the siege on the U.S. Capitol.

Trump was impeached by the House on Jan. 13 on a single charge of inciting insurrection. It focused on a speech the former president made to supporters shortly before the D.C. riot, where five people, including a police officer, died in the chaos.

Now, Democratic House lawmakers will serve as prosecutors, in hopes to persuade Senate members to formally convict the former president. If successful, lawmakers could choose to ban Trump from ever holding public office again. A two-thirds majority out of the 100-member Senate is needed to convict Trump. This means 17 Republicans would need to join all 50 Democrats in the conviction.

In this weeks episode of What The Politics?!, we follow and discuss the former presidents second impeachment trial. We speak with a law and First Amendment expert about the rights laid out in the First Amendment and what they really break down to.

We will also explore how social media has played a role in polarization in regards to free speech. As we follow the second impeachment trial, we will examine the points of both legal teams and how they pertain to the First Amendment to find out if there is truly a solid argument for the prosecution.

Emily and Victoria are joined by Clay Calvert, J.D., Ph.D.. He is a member of both the State Bar of California and the Bar of the Supreme Court of the United States, specializing in First Amendment Law. Calvert is the Brechner Eminent Scholar in Mass Communication and Director of the Marion B. Brechner First Amendment Project at the University of Florida.

As director, he has filed as counsel of record multiple friend-of-the-court briefs with the United States Supreme Court in cases such as Brown v. Entertainment Merchants Association, Elonis v. United States, and Lozman v. City of Riviera Beach. Calvert received his J.D. with Great Distinction from the University of Pacifics McGeorge School of Law, and then earned a Ph.D. in Communication from Stanford University. Calvert has authored and co-authored over 150 law journal articles on topics related to freedom of expression and the first amendment.

In April of 2017, Calvert presented a talk at TEDxUF called Catching Cops on Camera: A Gray Area. Professor Calvert is also one of the co-author of the market-leading undergraduate media law textbook, Mass Media Law, 20th ed. (McGraw-Hill, 2018). Calverts most notable work is Voyeur Nation (Westview, 2000).

Biography, publications, works, by Clay Calvert: https://www.jou.ufl.edu/staff/clay-calvert/

New episodes of What the Politics?! come every Tuesday. Join the conversation!

We want to hear from you! Send us an email with questions you want to be answered, topics you want to hear and guests youd like brought on. We want you to feel just as much a part of this conversation as we are!

Email either Emily, or Victoria:ECervarich@wnct.com;ViHolmes@wnct.com

OR message us on Twitter: @emily_c_tv ; @VicAntHol

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What The Politics?! Episode 21: Analyzing the First Amendment - WNCT

Heres what you need to know:Video

transcript

transcript

Like every other politically motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence and the interests of the American people. To claim that the president in any way wished, desired or encouraged lawless or violent behavior is a preposterous and monstrous lie. A small group who came to engage in violent and menacing behavior hijacked the event for their own purposes. This sham impeachment also poses a serious threat to freedom of speech for political leaders of both parties at every level of government. The Senate should be extremely careful about the president, the precedent, this case will set. We heard a lot this week about fight like hell, but they cut off the video before they showed you the presidents optimistic, patriotic words that followed immediately after. Fight like hell, and if you dont fight like hell, youre not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children and for our beloved country, and I say this despite all thats happened, the best is yet to come. This case, unfortunately, is about political hatred. It has become very clear that the House Democrats hate Donald Trump. This type of political hatred has no place in our political institutions, and certainly no place in the law. This hatred has led the House managers to manipulate and selectively edit Mr. Trumps speech to make it falsely appear that he sought to incite the crowd to violently attack the Capitol. Suddenly, the word fight is off limits? Spare us the hypocrisy and false indignation. Its a term used over and over and over again by politicians on both sides of the aisle. And of course, the Democrat House managers know that the word fight has been used figuratively in political speech forever. But dont take it from me. Its best to listen to them. We are in a fight. We are in a fight. Democrats are fighting as hard as we can. Democrats are standing up to fight. We know how to fight. We like a good fight. Democrats are going to fight like hell. We fight like hell. So why are we here? Politics. Their goal is to eliminate a political opponent. To substitute their judgment for the will of the voters. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of Covid relief to the American people.

Lawyers for Donald J. Trump delivered an incendiary but brief defense of the former president on Friday, calling the Houses charge that he incited an insurrection at the Capitol a preposterous and monstrous lie as they falsely equated his conduct to Democrats own combative rhetoric.

Confident they have enough votes from Republicans to acquit Mr. Trump, the lawyers used only about three of their 16 allotted hours. Their speed allowed senators to complete a period of questioning the prosecution and defense Friday evening and cleared the way for closing arguments and a final verdict, likely on Saturday.

Earlier, the defense team had channeled the former presidents own combative style and embrace of falsehoods to claim, contrary to facts, that Mr. Trump never glorified violence during his presidency and that he consistently called for peace as the rampage at the Capitol unfolded. Showing video clips of Democrats urging their supporters to fight and Mr. Trump venerating law and order, they sought to rewrite not just the narrative of his campaign to overturn the election but that of his entire presidency.

This trial is about far more than President Trump, said Bruce L. Castor Jr., one of the lawyers, as he closed the defense. It is about silencing the speech the majority does not agree with. It is about canceling 75 million Trump voters and criminalizing political viewpoints.

The defenses presentation unfolded after nine House prosecutors spent two days laying out a meticulous case against the former president dramatized with never-before-seen video of the Jan. 6 riot portraying the rampage as the direct result of Mr. Trumps monthslong campaign to overturn the election. Desperate to cling to power, the Democrats argued, Mr. Trump goaded his followers into joining his effort and would do so again, they said, if the Senate failed to convict him and bar him from holding office in the future.

Among the lawyers core arguments were that the Senate lacks jurisdiction to even try a former president now out of office, that Mr. Trumps conduct was protected by the First Amendment and that it came nowhere near the legal definition for incitement.

But standing before a jury of 100 senators, their case was as political in nature as it was legal. Using a favorite tactic of Mr. Trumps, his lawyers also sought to defend his behavior by citing that of others, arguing that he could no more be held responsible for the Capitol assault than Democrats could for the violence that erupted at some racial justice protests last summer.

They also sought to selectively poke holes in Democrats case. Michael van der Veen, one of the lawyers, insisted on Friday that Mr. Trump had only ever been interested in election security reforms, like voter ID laws an assertion that directly contradicted months of public and private actions by Mr. Trump. He said the president intended for the Jan. 6 rally he hosted before the attack to be peaceful, but that it had been hijacked by extremists, including from the far left another claim disproved even by Republicans.

The reality is Mr. Trump was not in any way shape or form instructing these people to fight using physical violence, Mr. van der Veen said. What he was instructing them to do was challenge their opponents in primary elections, to push for sweeping election reforms, to hold big tech responsible all customary and legal ways to petition your government for redress of grievances.

Mr. Castor also pointed to tweets by Mr. Trump while the attack was underway telling his supporters to stay peaceful and support our Capitol Police. But he did not discuss Mr. Trumps actions during the hours when the Capitol was under attack in which managers said he reveled in his success and delayed sending in reinforcements.

We know that the president would never have wanted such a riot to occur, because his longstanding hatred for violent protesters and his love for law and order is on display, worn on his sleeve, every single day that he served in the White House, he said.

Later, during the question and answer session, Mr. van der Veen said Mr. Trump had not been aware that his vice president, Mike Pence, had been in danger, even though a senator he called during the attack told him Mr. Pence was being evacuated from the chamber.

Maggie Haberman contributed reporting.

transcript

transcript

If we do not convict former President Trump, what message will we be sending to future presidents and Congresses? The consequences of his conduct were devastating on every level. Police officers were left overwhelmed, unprotected; Congress had to be evacuated; our staff barricaded in this building, calling their families to say goodbye. And the world watched us. And the world is still watching us to see what we will do this day. And will know what we did this day 100 years from now. Is it not true that under this new precedent, a future House facing partisan pressure to lock her up could impeach a former secretary of state and a future Senate be forced to put her on trial and potentially disqualify from any future office? In this case, we have a president who committed his crimes against the republic while he was in office. He was impeached by the House of Representatives while he was in office. Mr. Raskin cant tell you on what grounds you acquit. If you believe, even though there was a vote, that theres jurisdiction, if you believe jurisdiction is unconstitutional, you can still believe that. If you believe that the House did not give appropriate due process in this, that can be your reason to acquit. It is clear that President Trumps plot to undermine the 2020 election was built on lies and conspiracy theories. How did this plot to unconstitutionally keep President Trump in power lead to the radicalization of so many of President Trumps followers and the resulting attack on the Capitol? What our commander in chief did was the polar opposite of what were supposed to do. We let the people decide the elections. Except President Trump. He directed all of that rage that he had incited to January 6th. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election? Who asked that? [Sen. Bernie Sanders] I did. My judgment is irrelevant in this proceeding. It absolutely is. Whats supposed to happen here is the article of impeachment is supposed to be [Sen. Patrick Leahy] The Senate will be in order. Whats relevant in this impeachment article is: Were Mr. Trumps words inciteful to the point of violence and riot? Thats the charge. Thats the question. And the answer is no. If the Senates power to disqualify is not derivative of the power to remove a convicted president from office, could the Senate disqualify a sitting president but not remove him or her? Mr. Castro attributed a statement, the time before last that he was up here, that Donald Trump had told his people to fight to the death. Im not from here Im not like you guys I was being very polite and giving him an opportunity to correct the record. And I thought thats exactly what he would do. But instead, what he did is he came up and illustrated the problem with the presentation of the House case. Its been smoke and mirrors, and worse, its been dishonest.

Senators on Friday afternoon opened their first and last window in the trial to directly question the prosecution and defense. But as they submitted questions in writing one by one, most members of the jury appeared more interested in scoring political points than breaking new ground.

Does a politician raising bail for rioters encourage more rioting? read one early question from Senators Lindsey Graham of South Carolina, Ted Cruz of Texas and two other Republicans. It was an apparent reference to Democrats who supported bail funds for people arrested while protesting racial violence this summer.

Bruce L. Castor Jr., one of former President Donald J. Trumps lawyers, gave a one word answer: Yes.

Senator Bernie Sanders, independent of Vermont, asked Mr. Trumps lawyers whether the former presidents big lie was correct when he insisted over and over again that he had won the election. If it was an attempt to force his defense to contradict their client, it did not work.

Who asked that? responded Michael van der Veen, another lawyer for the former president, looking for Mr. Sanders. My judgment? My judgments is irrelevant in this proceeding.

As time ticked by, the former presidents lawyers and the House managers began sniping at each other, too. Mr. van der Veen complained the trial was the most miserable experience Ive had down here in Washington, D.C. and accused Representative Jamie Raskin, Democrat of Maryland and the lead manager, of doctoring evidence.

Mr. Raskin was not pleased. Counsel said before, This has been my worst experience in Washington, he said. For that, I say were sorry, but man you should have been here on Jan. 6.

A short time later, Senator Patrick J. Leahy of Vermont, who was presiding over the trial, gently warned that all parties in this chamber must refrain from using language that is not conducive to civil discourse.

The exception came from a small group of Republican senators openly contemplating conviction. Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Bill Cassidy of Louisiana all seemed interested in what Mr. Trump knew about the unfolding riot, when he knew it and what he did about it.

Mr. van der Veen said he could not precisely say when Mr. Trump learned about the attack, but he blamed it on the Democratic managers for building their impeachment on hearsay on top of hearsay on top of hearsay rather than a thorough investigation.

We have a tweet at 2:38 p.m., so it was certainly sometime before then, he said.

When Mr. Romney and Ms. Collins pressed the lawyers on Mr. Trumps specific knowledge of the threat to his vice president, Mike Pence, the answer was clearer, but it appeared to contradict the word of Senator Tommy Tuberville, Republican of Alabama, who told reporters this week he informed the president that the vice president was being evacuated from the Senate chamber during a contemporaneous phone call.

The answer is no, said Mr. van der Veen. At no point was the president informed that the vice president was in any danger.

Democrats scoffed, and argued that any weaknesses in their evidentiary record was the fault of Mr. Trump, who refused an invitation to testify.

Rather than yelling at us and screaming about how we didnt have time to get all the facts about what your client did, bring your client up here and have him testify under oath, Mr. Raskin said.

transcript

transcript

The House managers spoke about rhetoric, about a constant drumbeat of heated language. Well as Im sure everyone watching expected, we need to show you some of their own words. I just dont know why there arent uprisings all over the country. Maybe there will be. There needs to be unrest in the streets for as long as there is unrest in our lives. Weve got to be ready to throw a punch. We have to be able to throw a punch. Donald Trump, I think you need to go back and punch him in the face. Please get up in the face of some Congresspeople. People will do what they do. I want to tell you Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay a price. If you had to be stuck in an elevator with either President Trump, Mike Pence or Jeff Sessions, who would it be? Does one of us have to come out alive. Im just going to keep the fight up. What we have to do right now is fight as hard as we can. We have to rise up and fight back. And so, were going to fight. And were going to continue to fight. I am going to be fighting fighting like hell. Keep fighting, fighting, fighting we kept fighting, and we did. So were going to keep fighting. Never, never, never give up this fight. Im a citizen fighting for it Means not only fighting As a leader who fought for progressive change As a lawyer who fought for people his whole life As well as other fights, and Im proud to have Tim in this fight.

Former President Donald J. Trumps defense team offered their own video presentation on Friday a montage of remarks by Democrats urging supporters to fight a rhetorical drumbeat aimed at countering the impact of the footage of the real fight at the Capitol, images of blood and broken glass, presented by the prosecution on Wednesday.

The strategy by Mr. Trumps lawyers was to prove that Mr. Trumps call for his followers to fight like hell in a speech shortly before members of the crowd stormed Congress on Jan. 6 was no different than anti-Trump remarks made by Speaker Nancy Pelosi of California, Representative Maxine Waters of California, Senator Elizabeth Warren of Massachusetts and other members of Congress.

To make their point, the team played a lengthy mash-up of bellicose statements from Democrats including President Bidens claim on the campaign trail that he would have beaten the hell out of Mr. Trump in high school.

The presentation, featuring quick-cut editing and the type of ominous music often heard in negative campaign ads, a sharp contrast to the raw footage, sometimes silent, of the attack that was compiled by the House impeachment managers from security cameras and cellphone video, and accompanied by a minute-by-minute timeline.

The defense teams montage concluded with images of Democrats praising the protests against police violence in cities across the United States last summer, juxtaposed with video of rioting, even though every senior Democrat denounced violence.

I showed you the video because in this political forum, all robust speech should be protected, said Michael van der Veen, one of the presidents lawyers.

When you see speech such as this, you have to apply the First Amendment evenly. Blindly, he said, adding, She is blind, lady justice.

It reflected the argument being promoted by Trump defenders on conservative media outlets like Fox News, and was part of an effort to offer a more defiant defense pushed by the former president, who was dissatisfied with the earlier efforts of his team.

It is not clear that the approach had its desired effect, however.

During the presentation, senators in both parties were overheard chatting and laughing by observers in the chamber. Democrats emerged enraged at what they saw as an argument built upon false equivalence.

Show me anytime that the result was our supporters pulled someone out of the crowd, beat the living crap out of them and then we said: Thats great. Good for you. Youre a patriot, Sen. Chris Coons of Delaware said after watching the video.

Yet the approach might have succeeded in giving Republicans caught between their disdain for Mr. Trumps behavior and fear of his hold over the party enough cover to justify an acquittal.

The Twitter/CNN/MSNBC bubble will mock & dismiss this defense, but it is going to work with Republican voters and it will give much needed cover and justification to Republican Senators to acquit, said Joe Walsh, a former Republican congressman and frequent Trump critic, on Twitter during the defenses arguments.

As the Capitol was being infiltrated by a mob last month, what did President Donald J. Trump know about Vice President Mike Pences whereabouts and when did he know it?

That was a question multiple senators were intent on learning more about Friday evening, during a period in the impeachment trial in which senators questioned the House impeachment managers and Mr. Trumps lawyers.

At issue was not only when Mr. Trump took any steps to help end the riot, but also a tweet he posted that day at 2:24 p.m. as rioters had breached the Capitol and Mr. Pence was being rushed out of the Senate chamber.

The vice president didnt have the courage to do what should have been done to protect our Country and our Constitution, Mr. Trump tweeted.

Senator Mitt Romney asked early in the question-and-answer session: When President Trump sent the disparaging tweet at 2:24 p.m. regarding Vice President Pence, was he aware that Vice President Pence had been removed from the Senate by the Secret Service for his safety?

No, Michael van der Veen, one of Mr. Trumps lawyers, said bluntly. At no point, he continued, was the president informed that the vice president was in any danger.

The Democratic House managers, who are serving as prosecutors in the trial, argued that Mr. Trump had to know what was going on at the time of his tweet. The whole world knew it, all of us knew it, said Representative Joaquin Castro, Democrat of Texas. Live television had by this point shown that the insurgents were already inside the building, and that they had weapons and that the police were outnumbered.

The answer also appeared to contradict statements from Senator Tommy Tuberville, Republican of Alabama. Mr. Tuberville told reporters this week about a cellphone call he had with Mr. Trump as the Senate was being evacuated. Well, I mean, I dont know if youve ever talked to President Trump, he said. You dont get many words in, but, uh, he didnt get a chance to say a whole lot because I said, Mr. President, they just took the vice president out, Ive got to go.

The timestamp on Mr. Trumps tweet about Mr. Pence lacking courage shows it was sent about 10 minutes after Mr. Pence was evacuated from the chamber.

The Democratic House managers noted Mr. Tubervilles remarks in their answer to Mr. Romneys question. Later in the evening, Senator Bill Cassidy, Republican of Louisiana, brought them up again, asking if Mr. Tubervilles account shows Mr. Trump was tolerant of the intimidation of Vice President Pence.

Both sides largely reiterated their arguments.

But Mr. Trumps lawyer also argued that whatever Mr. Trump knew about Mr. Pences whereabouts was irrelevant to the charge against him, incitement of insurrection. Other legal analysts might be dubious of that argument. If Mr. Trump was aware of his vice presidents imminent danger, it would conceivably bear on Mr. Trumps intentions.

On the eve of a verdict in Donald J. Trumps Senate trial, one of the 10 Republicans who voted to impeach him confirmed on Friday night that the top House Republican, Representative Kevin McCarthy, told her that the former president had sided with the mob during a phone call as the Jan. 6 Capitol attack unfolded.

In a statement on Friday night, Representative Jaime Herrera Beutler, Republican of Washington, recounted a phone call relayed to her by Mr. McCarthy of California, the minority leader, in which Mr. Trump was said to have sided with the rioters, telling the top House Republican that members of the mob who had stormed the Capitol were more upset about the election than you are.

She pleaded with witnesses to step forward and share what they knew about Mr. Trumps actions and statements as the attack was underway.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time, Ms. Herrera Beutler said in the statement.

Her account of the call between Mr. McCarthy and Mr. Trump, first reported by CNN, addressed a crucial question in the impeachment trial: what Mr. Trump was doing and saying privately while the Capitol was being overrun.

Ms. Herrera Beutler said that Mr. McCarthy had relayed details of his phone call with Mr. Trump to her. She has been speaking publicly about it for weeks, including during a virtual town hall on Monday with constituents, and she recounted their conversation again in the statement on Friday.

A spokesman for Mr. McCarthy did not reply to a request for comment. Spokespeople for the House impeachment managers did not immediately reply to a request for comment.

The Republican leaders response to Mr. Trump in the weeks since the attack on the Capitol has fluctuated. On the day of the Houses impeachment vote, he said Mr. Trump bore some responsibility for the attack because he had not denounced the mob, but he has since backtracked and sought to repair his relationship with the former president.

By Ms. Herrera Beutlers account, Mr. McCarthy called Mr. Trump frantically on Jan. 6 as the Capitol was being besieged by thousands of pro-Trump supporters trying to stop Congress from counting Electoral College votes that would confirm his loss.

She said Mr. McCarthy asked him to publicly and forcefully call off the riot.

Mr. Trump replied by saying that antifa, not his supporters, was responsible. When Mr. McCarthy said that was not true, the former president was curt.

Well, Kevin, I guess these people are more upset about the election than you are, he said, according Ms. Herrera Beutlers account of what Mr. McCarthy told her.

Hours after the assault began, Mr. Trump tweeted a video in which he asked those ransacking the Capitol to leave. Go home. We love you. Youre very special, he said.

A core argument of Mr. Trumps defense, made by Michael van der Veen, one of his lawyers, is that Mr. Trump cannot be convicted of inciting an insurrection because everything he said was protected by his rights to free speech under the Constitution.

Mr. van der Veen who is a personal injury lawyer, not a civil liberties lawyer dismissed a letter signed last week by 144 constitutional scholars and First Amendment lawyers from across the political spectrum, who called a free speech defense of Mr. Trump legally frivolous and not grounds for dismissing the charge against him.

Nonetheless, Mr. van der Veen argued, Mr. Trumps speech deserves full protection under the First Amendment. He cited Supreme Court cases holding that elected officials can engage in political speech.

Adam Liptak, who covers the Supreme Court for The New York Times, addressed the argument in a live analysis.

Its true, of course, that elected officials have First Amendment rights, Mr. Liptak wrote. Its also true that government officials may be fired for making statements that would otherwise be protected political speech. An impeachment trial may present that second sort of question.

Mr. Liptak quoted from the House impeachment managers brief that addressed the First Amendment argument advanced by Mr. Trumps lawyers: Under President Trumps view of the First Amendment, even a sitting President who strenuously urged States to secede from the Union and rebel against the federal government would be immune from impeachment.

FACT CHECK

Donald J. Trumps lawyers, mounting their defense of the former president on Friday, made a number of inaccurate or misleading claims about the Jan. 6 siege of the Capitol, Mr. Trumps remarks and the impeachment process itself. Here are some of them.

Michael van der Veen, one of the lawyers, misleadingly said that Mr. Trump did not express a desire that the joint session be prevented from conducting its business but rather the entire premise of his remarks was that the democratic process would and should play out according to the letter of the law. But Mr. Trump repeatedly urged former Vice President Mike Pence to send it back to the States to recertify and noted that he was challenging the certification of the election.

Far from promoting insurrection of the United States, the presidents remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically, Mr. van der Veen said. Mr. Trump used the phrase peacefully and patriotically once in his speech, compared to 20 uses of the word fight.

Mr. van der Veen also claimed that one of the first people arrested in connection with the riots at the Capitol was the leader of antifa. That was a hyperbolic reference to John E. Sullivan, a Utah man who was charged on Jan. 15 for violent entry and disorderly conduct. Mr. Sullivan, an activist, has said he was there to film the siege. He has referred to antifa a loose collective of antifascist activists that has no leader on social media, but he has repeatedly denied being a member of the movement, though he shares its beliefs.

The Federal Bureau of Investigation has said there is no evidence that supporters of the antifa movement had participated in the Jan. 6 siege.

Mr. van der Veen equated the Jan. 6 siege to the protests at Lafayette Square in front of the White House last summer, and presented a false timeline, claiming that violent rioters repeatedly attacked Secret Service officers and at one point, pierced a security wall, culminating in the clearing of Lafayette Square.

There was no breach. Law enforcement officials began clearing Lafayette Square after 6 p.m. on June 1, to allow Mr. Trump to pose, while holding a Bible, in front of a church near the square. Additional security fencing was installed after those events, according to local news reports and the National Park Service.

Similarly, Mr. van der Veen compared Mr. Trumps complaints and political language about the 2020 election with concerns about the integrity of the 2016 election, arguing that the entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked. But American intelligence agencies concluded years ago that Russia tried to interfere in the 2016 election. The Republican-led Senate agreed last year that Russia disrupted that election to help Mr. Trump.

David Schoen, another lawyer, misleadingly claimed that the House held on to the article of impeachment until Democrats had secured control over the Senate and Representative Clyburn made clear they had considered holding the articles for over 100 days to provide President Biden with a clear pathway to implement his agenda.

In fact, Democrats had considered delivering the article to the Senate earlier, almost immediately after it was approved, but Senator Mitch McConnell, then the majority leader, precluded the possibility of an immediate trial in a letter informing Republican lawmakers that the Senate was in recess and may conduct no business until January 19. Mr. Clyburn made his suggestion of withholding the article even longer, after Mr. McConnell had sent his letter.

Mr. Schoen also accused Democrats of presenting a manufactured graphic, referring to a New York Times photo of Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, looking at a computer screen. The screen featured an image of a tweet Mr. Trump shared stamped with an erroneous date. Left unsaid was that the image was recreated because Mr. Trump has been banned from Twitter and House managers could not simply show the retweet itself. Mr. Schoen then acknowledged that House managers fixed the incorrect date before presenting the graphic during the trial.

Mr. Schoen complained once again that the impeachment did not afford Mr. Trump due process a point Mr. Trumps lawyers and supporters had previously argued during his first impeachment, and a point law scholars had dismissed.

There are no enforceable rights to due process in a House inquiry, and while those rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a law professor at the University of Missouri and an expert on impeachment. Former President Andrew Johnson, for example, was impeached by the House before it even drew up the articles.

Fani T. Willis, the top prosecutor in Fulton County, Ga., is targeting former President Donald J. Trump and a range of his allies in her newly announced investigation into election interference.

Ms. Willis and her office have indicated that the investigation, which she revealed this week, will include Senator Lindsey Grahams November phone call to Brad Raffensperger, Georgias secretary of state, about mail-in ballots; the abrupt removal last month of Byung J. Pak, the U.S. attorney for the Northern District of Georgia, who earned Mr. Trumps enmity for not advancing his debunked assertions about election fraud; and the false claims that Rudolph W. Giuliani, the presidents personal lawyer, made before state legislative committees.

An investigation is like an onion, Ms. Willis told The New York Times in an interview. You never know. You pull something back, and then you find something else.

She added, Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.

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Highlights of Day 4 of the Trump Impeachment Trial - The New York Times

By Noah Feldman / Bloomberg Opinion

The extended trial brief filed by Donald Trumps lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate cant try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, dont meet the requirements for criminal incitement conviction laid down by the Supreme Court.

The factual defense is highly unconvincing, as anyone who watched Trumps speech on Jan. 6 and saw the attack can attest.

The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent.

The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesnt apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial.

Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Courts incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohio probably would have protected Trumps speech.

The major component of Trumps argument is that the First Amendment applies to elected officials. As the lawyers put it only a little ungrammatically, the fatal flaw of the Houses arguments is that it seeks to meet out governmental punishments impeachments based on political speech that falls squarely within broad protections of the First Amendment.

To support their argument, Trumps lawyers cite Wood v. Georgia and Bond v. Floyd. Both are important Supreme Court cases, but neither proves that the First Amendment should apply to impeachment.

The 1962 Wood case arose when a local Georgia judge impaneled a grand jury and charged it to investigate supposedly suspicious block voting by African-American citizens. (Think of it as a precursor to todays false allegations of election scams, but in the context of the civil rights movement.)

While the grand jury was sitting, the local sheriff denounced the whole charade, telling the press that Whatever the Judges intention, the action will be considered one of the most deplorable examples of race agitation to come out of Middle Georgia in recent years . This action appears either as a crude attempt at judicial intimidation of negro voters and leaders or, at best, as agitation for a negro vote issue in local politics. The judge responded by holding the sheriff in contempt of court.

In an opinion by Chief Justice Earl Warren (not Justice William Brennan, as Trumps lawyers say), the court held that the contempt order violated the sheriffs free speech rights. The statement hadnt interfered with the sheriffs performance of his duties, the court explained, and added, The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.

This decision was about a judicial act the contempt order that would have imprisoned the sheriff. It had nothing to do with impeachment. It certainly shows that public officials possess First Amendment rights. Trump does, too. But that means only that he cant be criminally prosecuted for protected speech, not that he cant be impeached for inciting the Capitol attack.

The Bond case, in 1966, involved an attempt by the Georgia legislature to refuse to seat the civil rights activist Julian Bond when he was elected to that body. The legislature claimed that, because Bond opposed the Vietnam War and the draft, he could not have sincerely taken his oath to support the Constitution and laws of the United States. In another opinion by Chief Justice Warren (also misidentified by Trumps lawyers as Justice Brennan), the court explained that free speech applies not only to the citizen-critic but also to an elected legislator.

The ruling that the Georgia legislature could not keep Bond from taking office does not suggest that the First Amendment prohibits impeachment for Trumps incitement. The Georgia legislature wasnt impeaching Bond. It was making up a reason to exclude him from serving in the first place; conduct outside the bounds of its authority.

Apart from the moral outrageousness of comparing Donald Trump to Julian Bond, the citation seems meant to create a supposedly liberal argument for applying the First Amendment to Trump. (Maybe thats also why Trumps lawyers wanted to invoke Justice Brennan, even though he didnt write either of the opinions.)

That effort is unavailing, or should be. A robust commitment to free speech doesnt require protecting from impeachment a president who uses words in an attempt to destroy the democratic process.

Had Trumps lawyers been more forthright, they might have argued that, although the letter of the Constitution allows Trump to be impeached, the Senate should apply the spirit of the First Amendment to the case, and therefore take into account the Brandenburg definition of incitement. That argument would at least have been constitutionally respectable.

Even then, the House managers would have a good answer: that Trump violated the spirit of the Brandenburg rule by encouraging the attack on the Capitol. The former president probably couldnt be punished criminally for what he said on Jan. 6. But for the high crime of trying to break democracy, he can and should be barred from running for office again.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast Deep Background. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President.

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Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald

On Saturday, the Senate voted 57-43 to acquit former President Donald Trump on the single article of impeachment for inciting the insurrection at the Capitol. Without polling the senators individually, we cant know exactly what prompted the 43 Republicans to vote against holding Trump accountable. But in the weeks and months ahead, we may hear free speech used often as an excuse for acquittal.

Impeachment lawyers for Trump closed their defense by arguing, in large part, that his speech on the Ellipse on the morning of Jan. 6 is protected First Amendment speech. They conclude, as a result, that he cannot be impeached. This is incorrect. The First Amendment isnt a defense to impeachment proceedings, like it could be to criminal charges. Even if it did, Trump wouldnt be entitled to it.

The First Amendment isnt a defense to impeachment proceedings, like it could be to criminal charges. Even if it did, Trump wouldnt be entitled to it.

The First Amendment can be offered as a defense to prosecution in a criminal case. If youre indicted and an element of the alleged crime includes an exercise of your First Amendment rights, then you may have a defense that prevents your conviction. But that defense only goes so far.

Thats what happened in Brandenburg v. Ohio, a 1969 case where an Ohio Ku Klux Klan leader was convicted on state charges of inciting violence. A small group assembled at a farm, after inviting members of the press to film them. They claimed to be members of groups from across the country who would march on Congress at a later date because We're not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken.

The U.S. Supreme Court reversed the conviction, noting that there was a difference between advocating the need for violence in the abstract and preparing a group for violent action and steeling it to such action. A conviction could only be had, the court concluded, if the advocacy for violence was directed to incite or produce imminent lawless action and was also likely to incite or produce such action.

So, when the government prosecutes a citizen for a crime, mere advocacy is not enough, that is conduct that falls within the First Amendment. Incitement to imminent lawless action breaks through the barrier of free speech and subjects the individual to criminal prosecution.

But, and heres where Trumps First Amendment defense falls apart, impeachment is not a criminal proceeding. Trump was not charged with a federal crime, nor was he subject to imprisonment upon conviction. Impeachment is meant to do something else, it is meant to hold a president accountable when he fails to uphold his oath of office. Alexander Hamilton explained in Federalist 65 that impeachment concerns those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

The article of impeachment against Trump did not charge him with a violation of the federal criminal code. Instead, it charged that he "willfully made statements that, in context, encouraged and foreseeably resulted in lawless action at the Capitol, a high crime and misdemeanor. Presidents can engage in behavior that while lawful is so egregious an abuse of the public trust as to be impeachable. If a president decided to wear a Camp Auschwitz shirt like the one worn by a member of the mob that attacked the Capitol, it would be legal for him to do so. But it would also warrant immediate impeachment.

Because an impeachment proceeding is not a criminal prosecution, the First Amendment doesnt provide Trump with a defense here. A group of over 100 constitutional law scholars from across the political spectrum analyzed the issues and concluded that any First Amendment defense raised by Trump would be legally frivolous because a president can be impeached for lawful acts. Trump might be able to raise a First Amendment defense if he were subsequently prosecuted criminally, but it is no defense to the charge leveled against him in impeachment: that he violated his oath of office.

Trumps lawyers contorted two Supreme Court cases, Wood v. Georgia and Bond v. Floyd, to suggest the First Amendment applies to impeachment. While these cases involve elected officials, they dont involve impeachment and fail to lend any support to the argument Trumps arguments.

Thats really the end of the inquiry. If you want, you can stop reading here. But because lawyers like to argue in the alternative, ruling out all the possibilities, well take it a step further, for the sake of argument.

Thats really the end of the inquiry. If you want, you can stop reading here.

What if the First Amendment did apply to impeachment proceedings? Would it provide Trump with a defense in that case?

Here, the answer is still no. Even if the First Amendment applies to impeachment proceedings, Trumps conduct on Jan. 6 goes beyond what it protects. There are limits. The First Amendment doesnt protect yelling fire in a crowded movie theater. Nor does it protect an imminent incitement to lawless behavior. Trumps exhortations to the crowd on Jan. 6 fall into that later category of unprotected speech and could form the basis for impeachment, even if First Amendment protections were extended to those proceedings.

Thats because his speech fails the test in Brandenburg v. Ohio. Trumps rally ahead of the Capitol riot was unlike that case, where a conviction was reversed because the allegedly inciting speech happened before a small group of people on a farm and was about possible future action. Trump, after spending months undercutting peoples confidence in the integrity of the election, told his followers Jan. 6 would be wild and the chance to takeback what he claimed was a stolen election before Congress could certify it for Joe Biden. Then, on Jan. 6, he assembled thousands of people, including groups like the Proud Boys with a reputation for violence. And after telling them they were going to have to fight like hell if they wanted to keep their country, he unleashed them on the Capitol. As Rep. Madeleine Dean, D-Penn., one of the House impeachment managers said, there was only one fight left at this point: physically preventing Congress from certifying the vote.

The context and course of conduct overwhelmingly establish that Trump both intended to incite imminent lawless action and that his conduct was likely to incite such action. That means his speech falls outside of the First Amendments protection. Had he not intended to produce lawless actions, his reaction would have been horror over the attack on the Capitol, not delight followed by a reluctant and half-hearted entreaty hours later to the mob to go home. Trump encouraged an imminent attack on the Capitol by a mob that was primed to carry it out. So even if the First Amendment could apply to an impeachment setting, it would not apply to Trumps case.

Lead House impeachment manager Rep. Jamie Raskin, D-Md., a constitutional law professor before he became a member of Congress, noted during the proceedings that the First Amendment does not create some superpower immunity from impeachment for a president who attacks the Constitution in word and deed while rejecting the outcome of an election he happened to lose. Trumps lawyers efforts to turn it into a superpower fell well short of the mark. Their tortured reading of legal precedent may have played well to their audience of one and his supporters, but Republican senators do the country an extraordinary disservice by making it permissible for a president who has lost an election to engage in conduct designed to hold onto power by invoking the First Amendment.

Our country will be barely recognizable if future presidents can lie about the integrity of our election process, claim they won after the courts and independent state election processes confirm they lost, and then assemble a mob and instruct it to interfere with the peaceful transfer of power. And the senators who bought Trumps First Amendment fallacy have given future presidents permission to try to succeed where Trump failed.

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Trump acquitted in Senate impeachment trial that hinged on free speech fallacy - MSNBC

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