Case against the new cen.., p.8
Case Against the New Censorship, page 8
It doesn’t matter that President Trump was impeached by the House while still serving. It wouldn’t even matter if the Senate began its trial while he was still in office. The Senate loses jurisdiction over him as soon as his term ends and he is no longer subject to removal. This seems clear, not only from the text of the impeachment provisions of the Constitution, but also from the intention of the Framers. James Madison, the father of our Constitution, clearly stated that “the President of the United States is impeachable at any time during his continuance in office.” (emphasis added) At the time of the Framing, several states did allow impeachment of public officials after they left office. Members of the Constitutional Convention, some of whom represented these states, were aware of this process and they could easily have included it in our Constitution. But they chose not to. They also chose explicitly to prohibit the British practice of having the legislature try and punish specific individuals. The framers included a specific prohibition against Congress passing any “bill of attainder,” which is any legislative act punishing a specifically named individual. The courts have ruled that the punishments prohibited by the Bill of Attainder clause include disqualification from holding office. The only exception to the prohibition against trial by legislature is a Senate trial to remove an impeached office holder. These is no exception for merely disqualifying a former or possibly future officeholder. Moreover, the constitution requires the Chief Justice to preside “when the President of the United is tried,” not when the former or possibly future President is tried as a private citizen. The Senate has no power to try or to punish Donald Trump once his presidency has ended.
There is one case, back in 1876, of a cabinet member being tried by the Senate after he resigned his office, but it is a controversial precedent that is not binding on the current Senate and whether it can place a former President on trial. Secretary of War William W. Belknap was indisputably guilty of numerous impeachable offences, to which he confessed and resigned his office. Nevertheless, the House unanimously impeached him and, despite his resignation, the Senate voted 37 to 29 that it had the power to try him. Forty votes (two thirds) were needed to convict him. The final vote was 35 to 25 for conviction—five votes short. Reportedly, 23 of the votes for acquittal were cast by senators who believed he was guilty but that the Senate lacked jurisdiction to try a former cabinet member who had already left office. The nature of the votes, therefore, does not make this a compelling precedent for trying a former President after his term has ended. No former President or former high ranking officer has even been convicted by the senate of an impeachable offense.
A far more relevant precedent would be the decision by Congress not to impeach and try Richard Nixon after he resigned. When Nixon resigned to avoid facing certain impeachment and conviction, there was no movement to continue the impeachment process after he left office. This, despite the fact that Nixon committed indisputably impeachable offences and that there was widespread bi-partisan support and enough votes for his removal. But wiser heads prevailed, and no effort was made to pile on by impeaching and trying him after he left office. I am sure that at least part of the reason was the grave doubt that Congress had jurisdiction to put a private citizen, albeit an ex-president, on trial. Another negative precedent involved Aaron Burr, who planned an insurrection. Some of the planning may have begun while he was still serving as Vice President, but it was not revealed until after he left office. It never occurred to members of the framing generation to impeach Burr. Instead, he was prosecuted for his alleged offense—and acquitted.
Beyond the constitutional prohibition against trying a former president in the Senate, there are strong policy and historical reasons against an incoming administration taking recriminations against a former president who lost reelection. Unlike other countries, where defeated former presidents are routinely prosecuted, our nation has lived more in accordance with President Lincoln’s message to the soon-to-be-defeated Confederacy: “With Malice toward none, with charity for all, with firmness in the right, as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation’s wounds.”
It would set a terrible precedent for the victorious Democrats to recriminate against the defeated former president.
Moreover, it would distract from president Biden’s agenda and his express goal of healing our divided nation.
So the case against putting Citizen Trump on trial in the Senate after he leaves office is far more compelling than the case for putting him on trial.
G. The House Managers’ Brief Endangers our Freedom of Speech
[When the House Managers filed their brief, I published the following op-ed.]
The brief filed by the House managers advocating the conviction and disqualification of citizen Donald trump contains a frontal attack on freedom of speech for all Americans. It states categorically that “the first amendment does not apply at all to impeachment proceedings,” despite the express language of that amendment prohibiting “Congress” from making any law, or presumably taking any other action, that abridges “the freedom of speech.”
The brief is based on a flawed reading of history and on a misunderstanding of the role of freedom of speech in governance.
Its discussion of “free speech” begins with a sentence that reveals its fundamental error: “The First Amendment exists to promote our democratic system.” This categorical statement would surely have surprised the Framers of the First Amendment, who believed in freedom of speech, but not so much in democracy. The Framers of our constitutional system thought they were building a “republic,” with limited suffrage and many checks on “democracy.”
The electoral college, as conceived by the Framers, was anything but democratic. State legislatures could select the electors without even allowing eligible voters to participate in the process. Moreover, only a small fraction of citizens and residents were eligible to vote: white, male, 21-year-old, landowners—and even those were subject to varying disqualifications. The Senate was selected by state legislatures, not democratic voting.
“It’s a republic, if you can keep it,” proclaimed Benjamin Franklin. Freedom of speech was essential to keeping it a republic, not necessarily a democracy.
Over the years, we have evolved into a democracy, with near-universal suffrage, direct election of senators, and voting for presidential electors, but we would still be guaranteed the protections of the First Amendment even if we had not adopted these attributes of democracy. So, no, the First Amendment does not exist only to “protect our democratic system.” It exists to protect our liberty, regardless of what system we choose. If Americans were to vote to restore the British monarchy, as some Tories advocated both before and after the American revolution, the First Amendment would still guarantee us the right to dissent. The First Amendment is not merely a means to securing a particular form of government; the freedom of speech it guarantees is an end unto itself—an independent good, under any system of governance.
Why is this historic point so important? Because the argument made by the House Managers—that the First Amendment doesn’t apply to presidents or others who “attack our democracy”—was precisely the argument made by Joseph McCarthy and his followers when they sought to deny First Amendment protection to communists and others who were seen as enemies of democracy who, if they came to power, would deny the rest of us our freedoms, including of free speech. Those of us who fought against McCarthyism understood, better than the House Managers, that freedom of speech must include those who would replace democracy with other systems of governance. It must even include those who advocate severe restrictions on freedom of speech, as many young left-wing radicals do today. They, too, must be allowed to express their dangerous views.
The brief goes on to argue that even if the First Amendment were deemed applicable to impeachment, “A First Amendment defense would still fail,” because President Trump’s speech “plainly satisfies” the Brandenburg principle. That is simply wrong as a matter of constitutional law. President Trump’s speech is clearly within the protection of Brandenburg. He did not “incite” violence. To the contrary, he called for a peaceful and patriotic protest. Moreover, he advocated, rather than incited. The difference is clear. An incitement is a directive to a crowd to act immediately and lawlessly. Trump’s speech was made a mile away from the capitol, and although he used strong words, these words are typical of calls to action that have been held to be protected by the First Amendment. Hundreds of speakers, some of whom I and the ACLU have represented, have made similar harangues that fell within Constitutional protections. Indeed, even the ACLU, which supported Trump’s second impeachment, seemed to have implicitly acknowledged that his speech may fall within the protections of Brandenburg. They now appear to have changed their position, arguing that “Trump’s speech was not protected by Brandenberg.”
Perhaps the most fundamental flaw in the House Manager’s brief is that they regard impeachment as “fundamentally an employment action against a public official.” They make the following absurd argument: “Thus, just as a president may legitimately demand the resignation of a cabinet secretary who publicly disagrees with him on a matter of policy . . . the public’s elected representatives may disqualify the president from federal office when they recognize that his public statements constitute a violation of his oath of office and a high crime against the constitutional order.” But the analogy between a president firing a cabinet secretary and Congress removing and disqualifying a president flies in the face of the Constitution. The Framers explicitly rejected the British parliamentary system, in which “the public’s elected representatives” may remove a prime minister by a simple majority vote of no confidence. Instead, they imposed rigid criteria for removing and disqualifying a president – criteria that requires proof of treason, bribery, and other high crimes and misdemeanors. Impeachment and removal is not “fundamentally an employment action.” It is a grave interference with democracy that can result in a small number of elected officials removing a duly elected president and denying the public’s right to vote for him or her in a future election. To fail to understand that distinction is to fail to understand the Constitution.
H. Is the University of Chicago Requiring Loyalty Oaths from Its Faculty?
[Restrictions on freedom of expression by universities are not limited to those who supported Trump. In this article, I discuss “loyalty oaths”]
The University of Chicago’s English department, which has been ranked nationally as top in its field, has declared a set of beliefs to which its faculty is “committing.” Its announcement began with the following mea culpa: “English as a discipline” has encouraged “colonization, exploitation, extraction and anti-Blackness.” It then expressed the faculty’s collective belief: “In light of this historical reality, we believe that undoing persistent, recalcitrant anti-Blackness in our discipline and in our institutions must be the collective responsibility of all faculty, here and elsewhere.” Finally, it announced that “for the 2020-2021 graduate admissions cycle” it will accept “only applicants interested in working in and with Black Studies.” It is this last restriction that has generated the most interest—and criticism. But it is the formal declaration of a collective creed by a university department that is most troubling.
Any individual faculty member is entitled to commit him or herself to what the English Department calls “the struggle of Black and Indigenous people and all racialized and dispossessed people, against inequality and brutality,” but no department has the right to compel its faculty, staff or students to subscribe to any set of beliefs or commit to any “struggle.” Universities, and departments within universities, must be open to all points of view, beliefs and struggles. In totalitarian countries around the world, universities are required to be aligned with governmentally approved values. And when I was in college, some universities required teachers to take loyalty oaths against Communism.
But in the United States today, professors and students must remain free to come to their own conclusions, to arrive at their own beliefs and to decide for themselves which struggles are most important. That is what real diversity requires: not only diversity of race and ethnicity, but diversity of thought, belief, and commitment, not imposed uniformity.
What if a faculty member or student does not “believe” that studying Shakespeare, Melville, Faulkner, Lewis Carroll, Virginia Woolf, George Orwell and Alice Walker has actually encouraged these evils? Will such faculty members or students be evaluated fairly and their work judged objectively?
How would the University of Chicago English department deal with a Zionist scholar who strongly believes that the struggle against anti-Semitism and anti-Zionism is as important as the struggle of “dispossessed people?”
Would it allow University of Pennsylvania professor Adolph Reed, an African American Marxist, to argue, as he does, that race—i.e., Blackness—is less important than class, in struggling against an unjust society?
Would it allow professors to assign Martin Luther King’s speech in which the civil rights leader dreams of living in a nation where people will “not be judged by the color of their skin, but by the content of their character?” Will it disqualify any professor who is opposed to identity politics or race-based affirmative action?
Allowing a university department to impose its collective beliefs on all professors and students is a core violation of academic freedom. It threatens freedom of speech and conscience. It coerces compliance by dissidents who fear cancellation and discrimination. It risks turning great universities into propaganda mills for political correctness. Most frighteningly, it threatens to produce a generation of leaders who have not been taught how to think for themselves, but instead have been indoctrinated into a groupthink reminiscent of Orwell’s 1984—a book which I doubt will ever be assigned by the University of Chicago’s brave new English curriculum.
Nor does the Chicago English department want to limit its imposed beliefs only to its own faculty and students. It insists that “all faculty, here and elsewhere” commit to its “struggle” and follow its lead. I hope they don’t. It’s the road to conformity and tyranny of the mind, even if well intentioned.
House Managers: Good Politics, Bad Constitutional Law
The House Managers spent the first full day of trial laying out the timeline that led to the attack on the capitol. They showed videos, tweets, and other documents. It made for good theater and good politics, but very bad constitutional law.
Several of the Managers focused on Trump’s repeated claims from the night of the election until the day he left office that the election was stolen, fraudulent and unfair—and that he really won the election. The managers intended this to help their constitutional case, but it hurt it. Proving that Trump’s statements were false does not in any way strengthen their argument that they were not fully protected by the First Amendment. The Supreme Court has held over and over again that the Constitution does not distinguish between true and false statements. A false claim that the earth is flat is as constitutionally protected as conclusive evidence that the earth is round. A mendacious canard that the Holocaust did not occur is as protected as the fact that six million Jews were murdered. And President Trump’s statement, false as it may be, that the election was stolen is as constitutionally protected as the true claim that President Biden was legitimately elected. And Trump’s opinion, even if based on nothing more than wishful thinking, is protected by the Constitution.
Moreover, the Supreme Court has also held that there is no such thing as a false opinion under the First Amendment. Jamie Raskin, who is my former student, and then a professor of constitutional law, understands this. Why, then, is he spending so much time on establishing that Trump made false claims about the election? There are two possible explanations: the first is that this is political theater and the videos are very effective in undercutting Trump’s credibility. If this is the explanation, then this trial is more about persuading future voters than current Senators. The second explanation may be that the House Managers are trying to lay a trap for the Trump legal team. By focusing so heavily on Trump’s election claims, they may be hoping to force the Trump lawyers to defend Trump’s views on the election. If the Trump lawyers fall into this trap, they will be making a serious blunder. If the Senate trial turns into a debate as to whether or not President Biden was duly and fairly elected, Trump will lose several Senators who believe that he did not commit an impeachable offense, but who also believe that the election was not stolen.
One reason why I decided not to appear as counsel in this case is precisely because I was afraid I might be drawn into a discussion of the validity of the election. I personal believe the election was generally fair and I could not credibly argue the opposite. I suspect that Trump’s lawyers may feel the same discomfort, but they are not free to express their personal views if directed not to do so by their client. I, however, am completely free to defend President Trump’s speeches in the court of public opinion on the grounds of constitutional law alone.
One Democratic senator had the temerity to ask the Trump lawyers whether they personally believed the election was stolen. It was an utterly improper question to ask a lawyer, and he properly declined to answer.
