The single article of impeachment against former President Donald Trump states that in his speech at the Save America Rally on Jan. 6, he “willfully made statements that, in context, encouraged — and foreseeably resulted in — lawless action at the Capitol.” The riot that followed sadly resulted in five deaths, including Capitol Hill police officer Brian D. Sicknick and Ashli Babbitt.
But President Trump never incited anyone. In fact, he urged everyone to be peaceful at the rally: “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
After the violence began, Trump on Twitter urged his followers to stop immediately: “I am asking for everyone at the U.S. Capitol to remain peaceful. No violence! Remember, WE are the Party of Law & Order – respect the Law and our great men and women in Blue. Thank you!”
There is no question the Jan. 6 speech was constitutionally protected by the First Amendment. In Brandenburg v. Ohio in 1969, the Supreme Court found “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.” In that case, mere advocacy of violence or lawless action was not enough to sustain a conviction. Here, there was no such advocacy. Right off the bat, it fails the Brandenburg test.
So there is no crime. Article II, Section states “The President… shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” And Article I, Section 3 states “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States…”
The Constitution mentions removal from office upon conviction twice, whereas disqualification from office is only ever prefaced in conjunction with removal. Meaning, once a president’s term is over he cannot be disqualified, because to do that he’d have to be removed. Here, the Constitution was explicitly limiting the House’s exercise of the impeachment power to only a sitting president, thereby precluding the possibility of targeting a former president, thus rendering the trial of Trump unconstitutional. Upon expiration of Trump’s term, the impeachment became moot, and the fact that the House impeached Trump prior to his term ending cannot save the process, because as a constitutional matter, it is too late.
Meaning, agree or disagree with President Trump’s speech where he called for Vice President Mike Pence to only recognize alternate slates of electors for the Electoral College on Jan. 6 in favor of Trump, and for Congress to object electors for Joe Biden in Arizona, Pennsylvania, Michigan, Georgia, Wisconsin and Nevada, he explicitly stated that he expected protesters to remain “peaceful.” That is constitutionally protected speech, and Congress cannot criminalize protected speech.
Moreover, the attack on the Capitol appears to have been pre-planned according to Justice Department filings show that some of the rioters were planning the Capitol breach as early as Jan. 1 on Facebook. The FBI also revealed via a wanted poster that the two bombs placed outside the Republican National Committee and the Democratic National Committee set to go off on Jan.6 were planted the night before on Jan. 5. And, separately, a Black Lives Matter activist John Earle Sullivan who was also charged in the Capitol riot told the Epoch Times “he knew of plans to storm the Capitol” which he had seen in “undergrounds chats and things like that.” And Steven D’Antuono, the head of the FBI field office in Washington, D.C. told reporters on Jan. 12 that “We developed some intelligence that a number of individuals were planning to travel to the D.C. area with intentions to cause violence.”
So there is only one verdict. If you believe in the First Amendment, if you believe in free speech, if you believe that impeachment should only be reserved for real crimes, and you believe in due process, the Senate can only vote to acquit Trump. At the end of the day, it is free speech that is on trial, not former President Trump.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
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