Can Impeachment of President Trump Run Afoul of The First Amendment?

I have a big mouth. No. I have a very big mouth. Nonetheless, I have an idea on when to keep it shut and merely be an observer on “history’s” sidelines. As “experts” have bandied about what constitutional standard should apply to President Trump’s pending impeachment trial and whether he can be convicted after he leaves office, I, however, have been puzzled on why the “experts” seem to be overlooking two important considerations: the possible application of the First Amendment to impeachment proceedings while Trump is still in office and the very possible application of the First Amendment to the proceedings after he leaves office.

Yeah, yeah, I get the conventional wisdom. Impeachment is a constitutionally ordained political process in which the Article III courts play no role. I would tell you to hold your horses hard though on that one.

Common sense dictates that every action that President Trump takes and every word he utters is not automatically made within his capacity as President of the United States. He speaks and acts in other roles too, including that of a candidate for political office. As unsavory as his speech may be to sanctimonious “standards” of “political dignity,” his speech as a political candidate is protected by the First Amendment, including questioning the legitimacy of an election and urging his supporters to protest it.

Congress, however, is attempting to impeach him precisely for that speech. In other words, Congress is punishing Trump for political speech uttered as a private citizen – speech that is protected by the First Amendment. The “experts”, however, have completely neglected this important distinction in their rush to create readable material and generate clicks on the latest impeachment.

If Trump spoke as a private citizen, the Article III courts can, and should, get involved to halt the impeachment proceedings. They likely won’t though – a sign of contextual constitutional interpretation’s weaknesses.

You see, Article I grants Congress the power to remove people from office. Article I, Section 3 gives it the power to remove the President and prescribes what the judgment shall be in the case of impeachment. Article II, Section 4 supplements Article I, Section 3 by describing the offenses that a President may be impeached for: “Treason, Bribery, or other high Crimes and Misdemeanors.” Article I, Section 5 also gives Congress the power to expel its own members for disorderly behavior – a far lower standard than the one that the Constitution describes for the President.

The current impeachment of President Trump appears to be operating on the lower standard although the House indictment did accuse him of inciting an insurrection and being seditious. The absence of direct evidence of Trump advocating for violence or illegal measures creates logical problems for the impeachment. The presence of evidence where he specifically advocates for peaceful protests creates a veritable sinkhole. Jet packs apparently exist though. The impeachment is currently operating on the grounds that he acted disorderly in his capacity as a private citizen by fomenting the discontent that led to the storming of the Capitol building.

Because the articles of impeachment that we have now are ambiguous on the where they fall on this line, the Article III courts will refuse to get involved because they will defer to Congress’s prerogative to judge which side of the line that the articles fall on. In doing so, the Article III courts are implicitly endorsing a contextualist interpretation of the removal processes that strays from Article II’s requirements and jeopardize stripping elected officials of their First Amendment protections as candidates.

The picture becomes far messier after President Trump leaves office if the Senate decides to proceed with impeachment. There are only three constitutionally permissible sanctions that can be imposed on an impeached official: removal from office, stripping of presidential immunity, and disqualification from holding a future office. Holding President Trump’s impeachment trial after he leaves office does not serve any purpose of removing an unfit person from office. It only serves the purpose of stripping him of his presidential immunity and barring him from holding future office.

Once again, the critical component here is in what capacity that President Trump spoke. The evidence points overwhelmingly to the fact that he spoke as a candidate for political office and not in his capacity as President. It also points to the fact that he never advocated for insurrection, sedition, or any unlawful action. In fact, he discouraged it in his speeches.

Thus, the sanctions that Congress would impose would really be retaliation for the content of his speech – the questioning of whether the 2020 presidential election was fair and legitimate. There is no question that his questioning of the fairness of the 2020 presidential election as a private citizen and a candidate for office is constitutionally protected political speech.

Congressional sanctions, therefore, would act as a bill of attainder (an act of a legislature declaring a person guilty of a crime and imposing punishment without due process process) retaliating against Trump for uttering speech protected by the First Amendment. The punishment would be to strip of presidential immunity and bar him from engaging in future campaigns for office, thus stripping him of a substantial portion of his First Amendment rights.

At this stage, the proposition that the Article III courts should be involved to halt the proceedings changes drastically. The Article III courts must be involved to stop the impeachment proceedings or to void them immediately.

I see no greater danger to our nation than when political retaliation can be carried out in the halls of Congress through the bastardization of a constitutional process that is manipulated to avoid the constitutional proscription on another. We are about to witness such a moment.

Whether you love or hate Trump, an impeachment process that reeks of First Amendment retaliation and a bill of attainder should be something that scares you. It will have devastating consequences for our nation if it succeeds.

Cameron L. Atkinson

Cameron Atkinson is a Christian, a published constitutional scholar, a trial and appellate lawyer, and a general hell-raiser. He has received national recognition for his victories in civil rights cases, especially in First Amendment cases. Attorney Atkinson stands out for his written advocacy, and he has taken the lead role in briefing cases to the United States Supreme Court, the United States Court of Appeals for the Second Circuit, the Connecticut Supreme Court, the Connecticut Appellate Court, and multiple New York appellate courts. Attorney Atkinson has successfully represented clients facing criminal charges, including successfully arguing for the reversal of a sexual assault conviction before the Connecticut Supreme Court. He will accept requests for public speaking engagements on a case-by-case basis.

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