Liberal law professor Jonathan Turley on Saturday issued a warning about Democrats’ long-term damage to the Constitution should they continue to press forward with their plans to impeach President Donald Trump (yet again) as his administration comes to a close.
“In seeking his removal for ‘incitement,’ Democrats would gut not only the impeachment standard but free speech, all in a mad rush to remove Trump just days before the end of his term,” Turley wrote in an opinion piece for The Hill.
Although the law professor took issue with Trump’s speech before supporters, as well as Republicans objections to certifying the electoral votes in Joe Biden’s favor, Turley said the president’s speech doesn’t “meet the definition of incitement under the U.S. criminal code.” In fact, Trump’s speech is deemed “protected speech” under the First Amendment, the professor noted.
Turley also pinpointed one thing Democrats fail to recognize: the President Trump never called for violence. He simply urged his supporters to march towards the Capitol, something that’s common place in Washington, D.C.
“Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers ‘to peacefully and patriotically make your voices heard.'”
The concern Turley has with Democrats’ impeachment push: the precedent it could set for future generations.
There was no call for lawless action by Trump. Instead, there was a call for a protest at the Capitol. Moreover, violence was not imminent; the vast majority of the tens of thousands of protesters present were not violent before the march, and most did not riot inside the Capitol. Like many violent protests we have witnessed over the last four years, including Trump’s 2017 inauguration, the criminal conduct was carried out by a smaller group of instigators. Capitol police knew of the planned march but declined an offer of National Guard personnel because they did not view violence as likely.
Thus, Congress is about to seek the impeachment of a president for a speech that is protected under the First Amendment. It would create precedent for the impeachment of any president who can be blamed for the violent acts of others after the use of reckless or inflammatory language.
… Democrats are now arguing something even more extreme as the basis for impeachment. Under their theory, any president could be removed for rhetoric deemed to have the “natural tendency” to encourage others to act in a riotous fashion. Even a call for supporters to protest peacefully would not be a defense. This standard would allow for a type of vicarious impeachment — attributing conduct of third parties to a president for the purposes of removal.
The professor noted that various Democrats, including Reps. Maxine Waters (D-CA) and Ayanna Pressley (D-MA) and then-Sen. Kamala Harris (D-CA) have all made remarks in the past that contradict their current position. In fact, things they said in the past, like Pressley saying “there needs to be unrest in the streets,” could be construed as meaning violence should take place.
“They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity,” Turley explained.
He ends his piece by warning about the long-term structural damage this second impeachment push could have on our nation.
The damage caused by this week’s rioting was enormous, but it will pale in comparison to the damage from a new precedent of a “snap impeachment” for speech protected under the First Amendment. It is the very danger that the Framers sought to avoid in crafting the impeachment standard. In a process meant to require deliberative, not impulsive, judgments, the very reference to a “snap impeachment” is a contradiction in constitutional terms. In this new system, guilt is not to be doubted and innocence is not to be deliberated. It would do to the Constitution what the rioters did to the Capitol: Leave it in tatters.
The ball’s in your court, Democrats. How will you proceed?
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