Hayden Thorne is no fan of former US president Donald Trump, but asks if a public impeachment is really the best way forward?
On the morning of Wednesday 10 February New Zealand time, the United States Senate voted that it was a constitutional process to proceed with former president Donald Trump’s impeachment trial, with the support of six Republican Senators.
Despite the appearance of a judicial proceeding, presided over by the Chief Justice of the Supreme Court, impeachment is a political process.
Article 1, Section 3 of the Constitution gives the Senate the power to try all impeachments and requires a two-thirds majority for conviction. Article 2, Section 4, provides that the President can only be impeached for “treason, bribery, or other high crimes and misdemeanors”, with no further guidance on what an impeachable offence might look like.
The Senate, with the caveat of requiring a two-thirds majority, has the sole power to determine what an impeachable offence is, the standard of proof required to satisfy a charge, and whether in any given case that standard is met.
This is a judicial process in appearance only—at heart, it is a political process, requiring at least some bipartisan support (a party holding two-thirds or more of Senate seats is rare and hasn’t happened since the 89th Congress during Lyndon B Johnson’s presidency).
Trump’s impeachment is even more political than others because the crime he has been accused of in the Articles of Impeachment passed by the House of Representatives is “incitement of insurrection”—a charge with a long political history in the US that effectively requires a determination of the political goals of the person accused.
To lay my cards on the table, I despise Trump and what he stood for during his time in office. He peddled racist, misogynist, homophobic, and almost any other form of hateful views you could come up with. However, I remain unconvinced the politically charged impeachment process, with the added difficulty thrown up by the First Amendment, is the best way of addressing this.
The US has a long and difficult history of political repression and an almost equally long history of ignoring the free speech guarantee of the First Amendment when it has suited the purposes of the majority.
In 1918, the Sedition Act criminalised speech intended to criticise or hinder the war effort, and the Supreme Court upheld convictions under that Act using what it termed a “clear and present danger” test. In other words, if speech was used in circumstances that presented a clear and present danger of a particular evil, it was not protected by the First Amendment.
This test, rooted in what was effectively a political judgment of the goals of any given speaker, was used to great effect to suppress early socialist and communist activists. Despite the stirring dissent of the great Justice Oliver Wendell Holmes, who urged that “The best test of truth is the power of the thought to get itself accepted in the competition of the market”, US law continued to tolerate the repression of free speech rights of political minorities.
That repression continued and indeed gathered pace in the aftermath of World War II, when the US was gripped by a sustained red scare. In Dennis v United States (1951), the Supreme Court affirmed the convictions of 11 Communist Party of the United States leaders for a conspiracy to “advocate … or teach … the duty, necessity, desirability, or propriety of overthrowing … any government in the United States by force or violence”. The Supreme Court upheld the precedents of 1919 and 1920 that allowed the punishment of mere advocacy without any action intended to carry out the goal of that speech.
It was not until 1969 (ironically, in a case dealing with a speech by an Ohio Ku Klux Klan member) that the Supreme Court adopted a view of the First Amendment that prevented the criminalisation of “mere advocacy” of violence unless directed to inciting imminent lawless action and such action is likely to be produced. This decision, in Brandenburg v Ohio, remains the guiding principle in First Amendment case law, and is not without its own problems.
Taken as a whole, however, the history of the First Amendment is one of an oppression of minority views, mostly on the left, with little reference to any actual danger other than in the minds of the over-hyped, McCarthyist right.
This history should at the very least encourage us to pause before condemning Trump to an impeachable offence on the basis of speech alone. The prosecution or condemnation of speech alone is a dangerous game—and has long been a tool used to oppress those who now seek to use it for their own purposes.
There is no objective way to measure the danger posed by speech—courts have tried for hundreds of years, and in the process have produced a legal mess few scholars can claim to understand. Although it seems clear the mob that attacked the Capitol on January 6 was acting on what they thought was Trump’s instruction, ascribing responsibility for their actions to Trump’s mostly indirect words requires a significant step down a deep, dark legal rabbit hole.
In 1927, Justice Louis Brandeis wrote what many scholars believe to be the most significant defence of free speech, when in Whitney v California he observed that the Founding Founders “believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth … they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies, and that the fitting remedy for evil counsels is good ones”.
In short, “to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence”. More speech, not less, is the antidote to hate and intolerance.
A problematic response
Impeachment, then, is a political process. And an impeachment based on speech is doubly political. The First Amendment, one of the Constitution’s crowning glories when used properly, throws major questions over the propriety and wisdom of this impeachment process.
None of this is to say what Trump did was right, or acceptable—it was not. It is simply to say the current process may not be the best way to address the issue. Given the long history of speech-oppressive legislation and judicial decision making in the US, maybe the time has come to embrace Brandeis’s philosophy and answer speeches of intolerance and hate with much greater speech of tolerance and hope—to educate, and bring people together, rather than to pursue a remedy that will only heighten the divides in US politics and society.
And, even as a matter of politics, is a public impeachment, with the chance for Trump to further air his views and a continued media platform to encourage his followers, really the best way forward? On current numbers, it looks all but impossible for the impeachment to succeed, so maybe it is time to take a step back and plot a better path towards a more united America.
Hayden Thorne is a PhD candidate in the history programme at Te Herenga Waka—Victoria University of Wellington, specialising in the US Supreme Court.