“No man ever thought of impeaching a man for an opinion.” — Gov. Edmund Randolph, speaking for the Constitution at the Virginia Ratifying Convention, 1788
Edmund Randolph would have been astonished at Day #2 of the Trump impeachment trial, as the prosecutors repeatedly called for conviction because Trump had dared to express his opinions.What’s the political reality? First, candidates on the campaign trail routinely predict victory, even when they know the odds are stacked heavily against them. It’s an expression of confidence. Any admission of uncertainty on this score is virtually a concession statement. And we all know that if Trump had admitted the slightest possibility of defeat in an honest election, within minutes the mainstream media would have been proclaiming his imminent political demise.
Second, predictions of victory from non-corrupt candidates always presume the election will be honest. Candidates usually don’t have to say this, because our elections usually are honest.
So where was the harm in predicting victory so long as the election was honest?
Another “impeachable” Trump opinion was one he expressed after the election: That the vote had been stolen from him. Rep. Eric Swalwell (D-Calif.) argued that “Day after day, [Trump] told his supporters false outlandish lies that the victory, that the election outcome was taken and it was rigged. And he had absolutely no support for his claims.” Rep. Joe Neguse (D-Colo.) made similar statements.
In an impeachment trial, if the House managers claim that the accused’s alleged lies form a basis for conviction, then they have the burden of proving—by clear and convincing evidence—that the statements were, in fact, lies. In this trial, they need to introduce clear proof that (1) the election was clean and (2) Trump knew it was clean when he said it was not.
We don’t know whether those irregularities changed the results. But Trump certainly had the right to believe they did. If he had the right to believe it, then the First Amendment protected his right to tell others.
Oh, but lead House impeachment manager Rep. Jamie Raskin (D-Md.) doesn’t think the First Amendment applies. Of course, it wouldn’t apply if Trump were deliberately inciting violence: But in a part of his Jan. 6 speech that Raskin and the other prosecutors always omit, Trump told the crowd to proceed “peaceably.” Anyway, the charge that Trump deliberately incited violence was abandoned weeks ago when an earlier draft of the Article of Impeachment was amended to drop it: By then, it had become clear that others planned the violence well before Trump’s speech. The final version of the Article alleges only that violence was foreseeable.
But Raskin has another ground for claiming the First Amendment doesn’t protect Trump: that he “was the President of United States and he swore to preserve, protect, and defend the Constitution. He had an affirmative binding duty, one that set him apart from everyone else in the country, to take care that the laws be faithfully executed.”
You can see where this is going. Anyone who assumes a state or federal office takes an oath to defend the Constitution. If Democrats think your expressed opinions violate that oath, the First Amendment doesn’t apply to you. How convenient!
According to the impeachment managers, Trump stirred up violence by saying, first, that he was going to win unless there was election fraud, and, later, that he lost because of election fraud.
To see if this holds water, let’s get hypothetical for a moment: Before all the votes were counted, Joe Biden famously told his supporters, “We’re going to win this race.” Now, we know that there were plans for massive street riots throughout the country if Biden lost. If Biden’s prediction turned out to be inaccurate and the streets erupted, would the House Democrats have held Biden responsible for the violence?
Next, let’s get real: For months last year, state and local officeholders allowed thugs to inflict violence and destruction on a scale that dwarfed the Capitol break-in. Some officeholders even celebrated the events. (Remember Seattle Mayor Jenny Durkan’s “summer of love?”)
How many of the House managers called for the removal of those negligent officers? How many supported President Trump when he deployed law enforcement to protect federal monuments from the mobs?
I was amused to note that twice in these proceedings, Raskin felt the need to tell us he is a former law professor. Here’s how he did it yesterday:
“And this little diversion caught my eye because I’ve been a professor of constitutional law in the First Amendment for decades. ... Last week, 144 constitutional scholars ... released a statement calling the president’s First Amendment arguments, ‘legally frivolous.’”
Parenthetically, I might note this: The fact that Raskin was a law professor makes even worse his ethical violation in sending a letter directly to an opposing attorney’s client (the “invitation” to testify). But set that aside.
More importantly, there’s a dirty little secret about law professors that this writer—also a former constitutional law professor who taught First Amendment law—hereby shares with you: The public letters issued by lists of law professors on controversial political issues usually aren’t worth a puff of hot air.
One reason is that most law professors work in lefty hothouses where contrary opinions are rare and discouraged. Many hate Trump and will sign anything to hurt him. A second reason is because law professors are notorious among academics for palming off their preconceived political opinions as “scholarship.” A third reason is that even most constitutional law professors know relatively little about the background, history, and real meaning of the Constitution: They mostly teach and write about court cases.
So forget the law professors. If only Edmund Randolph were here to talk sense to us today!
