Rep. Jamie Raskin (D-MD) is dead wrong when he says that former President Donald Trump can be impeached for political speech that is protected by the First Amendment, and it speaks volumes about this unconstitutional sham of a Senate impeachment trial.
The Democrat House impeachment managers concluded their arguments regarding the former president on Thursday. Knowing the main points the Trump team’s arguments are about to make to the Senate, lead manager Raskin included in his remarks that even if Trump’s words on January 6 were protected by the First Amendment, he can still be impeached and convicted for them.
This is an outrage that would have been unthinkable just a few short years ago. I have already opined on why trying the impeachment of a former president is unconstitutional and what advice I would give Trump.
But Raskin took this sham to a new low of unconstitutionality when he argued that there is no First Amendment defense against impeachment. Actually, the Constitution is a 100 percent defense against impeachment. That goes to the heart of what impeachment is about.
The Constitution says that a president can be impeached only for high crimes and misdemeanors. And each senator takes an oath at an impeachment trial that the senator “will do impartial justice according to the Constitution and laws.”
The First Amendment is part of the Constitution, which is the Supreme Law of the Land. So anything protected by the First Amendment cannot be any sort of crime because it supersedes criminal laws, and therefore any senator sworn to follow the Constitution in this trial cannot consider anything protected by a constitutional right to be criminal grounds for impeachment and conviction.
Not all speech is protected by the First Amendment. A person cannot commit perjury by lying under oath, or impersonate a federal police officer, or lie on a tax return. Those are all crimes. The famous example is that you cannot falsely shout “Fire!” in a crowded theatre.
But that is not what Raskin said. He did not say that you cannot claim constitutional protection for criminal speech. Everyone knows that, and in fact former President Bill Clinton was impeached for perjury when he lied under oath.
Instead Raskin said that the First Amendment cannot be a defense. That is absurd. Not all speech is protected by the First Amendment, but speech that is constitutionally protected must by definition not be any sort of criminal speech. If so, then a person saying it has exercised a constitutional right, and thus not committed a high crime or misdemeanor, and therefore cannot be impeached for it.
Just imagine where Raskin’s reasoning would take this country. If a president is a faithful Roman Catholic, devout Southern Baptist, or Orthodox Jew, whose faith teaches that marriage is between one man and one woman, and that sex is defined by biology rather than the gender a person chooses to identify with, that could run afoul of antidiscrimination laws. The correct response is that such beliefs are protected by the Free Speech Clause and Free Exercise Clause of the Constitution’s First Amendment, which trumps federal and state antidiscrimination laws, and therefore are perfectly legal.
But under Raskin’s view of impeachment, such a president could be removed from office for being an active part of that church or temple because they cannot assert any part of the First Amendment as justifying their words or actions.
You could make similar arguments for public officials who exercise their Second Amendment right to bear arms, or their Fourteenth Amendment rights to travel to another state (like, for example, Florida – which seems to be controversial these days). There could be legal arguments made against those officials, who could assert those constitutional rights as protecting their actions. But if the First Amendment is not a defense against impeachment, neither is it a defense of the rights guaranteed by another constitutional amendment.
Raskin can try to argue that Trump’s words fit into one of those narrow categories of speech that are not protected by the First Amendment, and therefore can be illegal speech. But he cannot argue that a public official doing something that is protected by a constitutional right can somehow also be a crime that can get them removed from office.
The events of January 6 were terrible, and those who broke the law must be held accountable. But to claim that truth as a justification for saying that even the First Amendment cannot stand in the way of Democrats’ vengeance against a former Republican president is a dangerous claim, and provides yet another reason for the Senate to acquit.
Ken Blackwell is on the policy board of the American Constitutional Rights Union and the board of directors of First Liberty Institute, and Distinguished Fellow for Human Rights and Constitutional Governance at the Family Research Council.