It’s impeachment time (again), and part of former President Trump’s defense is that he was exercising his First Amendment rights in addressing the crowd that included those who afterward assaulted the Capitol.
At first blush, this seems like a pretty strong defense. The First Amendment tolerates a lot, not just the wholesome but also the profane, the inane, the almost violent. In the Supreme Court’s rendering, it only stops short of shielding speech “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
By this count, Trump has a solid argument that his monologue gets a pass. His “fight like hell [or] you’re not going to have a country anymore” are fighting words in the rev ’em up sense, the hyperbole emblematic of modern politics. But they’re arguably not so targeted that a neutral observer would have read into them an admonition to trample the barriers to the Capitol, force entry, and ransack and kill.
At least let’s grant this argument for the moment. Because there’s something more fundamental at stake in this trial.
By the Constitution’s own telling, a president can be impeached for something that does not violate the law; its explicit standard is “Treason, Bribery, or other high Crimes and Misdemeanors.” Cynics view this as a purely political standard, and not in a good sense. A majority of the House and two-thirds of the Senate could, in theory, declare any conduct they dislike to be a high crime or misdemeanor, using this fluid standard to send the president packing for any action whatsoever.
While this seems far-fetched, not just because of historical precedent but also because of the two-thirds requirement in the Senate for conviction, it’s not entirely off the mark. Because the Constitutional standard is indeed vague. Congress does have a lot of latitude in determining when a president’s conduct is beyond the pale, when the VP gets a promotion.
So what should the standard be? What should a senator today judge Donald Trump against?
Most fundamentally, a president’s duties are summed up in the oath he takes: “I do solemnly swear that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.” In this oath lies the key to justly evaluating a presidential defendant’s action in an impeachment trial. There are two things of significance.
First, the oath is something that (thankfully) the rest of us don’t take. Which means that the president is required to do more than other Americans.
And this gets to the second point. A president is required to affirmatively “preserve, protect and defend the Constitution.” This, again, is something that is not required of the rest of us. In fact, the Constitution gives us non-presidents the right to do just the opposite. I have a First Amendment right to call for the abolition of the Constitution. Not so a president. He must, upon swearing that oath, give up parts of his freedom of expression for the duration of his time in office in order that he might uphold the Constitution.
So what does this mean for Trump’s trial? Fundamentally, that senators should be evaluating whether the former president, in his words and by his actions, preserved, protected, and defended the Constitution. These are active, and positive, verbs and they demand intentionality. Ignoring threats to the Constitution or, worse, using rhetoric that might be construed to encourage violence to the Constitution violates the president’s oath.
Now critics will contend that this is an hazy standard, an “I know it when I see it” line. And indeed it is.
But senators ought not hide behind a First Amendment fig leaf. If President Trump used his First Amendment rights to do something other than “preserve, protect and defend the Constitution,” then he ought to be convicted.
