Mark Graber, Regents Professor at the University of Maryland Carey School of Law, and Sanford Levinson, Garwood Centennial Chair at University of Texas at Austin School of law, discuss the overlegalizing of the impeachment of Donald Trump in the wake of the violence at the U.S. Capitol…
The monopolistic control lawyers and the Supreme Court assert over constitutional meaning is threatening to pervert and sidetrack congressional efforts to free Americans of a president who, even in his last ten days of office, terrifies millions of citizens across the political spectrum. The Constitution offers at least two paths by which “we the people” can either fire a grossly deficient president or prevent an out-of-control lame duck from wreaking havoc on the body politic. One is impeachment, which appears increasingly likely in the House of Representatives, perhaps even early this week. The other is the 25th Amendment of the U.S. Constitution, which requires that the vice-president handpicked by the president lead what might be perceived as a palace coup against the Leader. Common sense and the Constitution support both means for ridding the United States of rule by Donald Trump. Both risk being sidetracked by unnecessary legal technicalities that only lawyers who demand, contrary to common sense and the Constitution, that the process for maintaining the integrity of the Government ought to prioritize legal formalism over political substance.
Overlegalization is infecting impeachment and efforts to employ Section Four of the Twenty-Fifth Amendment. The Congressional articles of impeachment, drafted by lawyers, assume Donald Trump can be impeached for inciting an insurrection against the government only if his speech could be prosecuted under the First Amendment. Prominent voices complain that the processes demanded by Section Four, which require a judgment that the president can no longer fulfil the duties of office, cannot be done with dispatch because the Vice President must provide elaborate proof by reliable medical evidence that the president is in fact physically or mentally impaired. Perhaps both propositions make sense to well-trained lawyers. The problem is that both defy common sense and, we suggest, the Constitution. The impeachment clause is best interpreted as permitting the impeachment of a President who incites insurrection, even if, by stipulation, the “incitement” might not be subject to prosecution under the Supreme Court’s First Amendment jurisprudence. There is no need to subject a president to elaborate tests and then await a medical diagnosis to remove a president who has demonstrated to any cogent observer a manifest unwillingness or inability to perform the duties of office.
The present Articles of impeachment against Donald Trump track the conditions on which the Supreme Court has declared the government may punish advocacy of criminal misconduct. Brandenburg v. Ohio (1968) is the most important Supreme Court precedent. That case arose after Clarence Brandenburg was convicted by a state court of criminal syndicalism for telling a Ku Klux Klan gathering in Ohio that they should seek “revengeance” against the Jews and Catholics ruining the country. The Court decision unanimously (and, we believe, correctly) overturning that conviction held that all “advocacy,” however repellant, is protected by the First Amendment. Prohibition is legitimate if and only if the speaker engaged in incitement rather than advocacy. The difference between “advocacy” and “incitement” is a legal one. The speaker must not only try to whip up the crowd to act, but the lawless action must also be likely to occur as a result of the incitement. One might view “incitement” in this context as appealing to the emotions of an audience to provoke them to act and, to act now. The Court in Brandenburg added that punishment is legitimate only if the lawless action produced by the incitement was “imminent.” If, on the other hand, the incitement is to act tomorrow, instead of right now, then there would, in Louis Brandeis important formulation during the 1920s, be time for “good speech” to overcome the negative effects of the “bad speech” that the state was seeking to punish. Even meeting all these criteria might not be enough to justify punishment under First Amendment precedent. The justices insist the lawless action be likely to cause significant damage. All these elements are set out in the congressional indictment against Trump. That document declares Trump “willfully incited violence against the Government of the United States,” that Trump incited “imminent lawless action,” that incitement caused “violent, deadly, destructive, and seditious acts,” and that those acts were “foreseeabl[e].”
We have grave reservations about whether progressives would interpret the First Amendment as not protecting the same speech Donald Trump made on January 6th, 2021, if that speech had been made by a different person. The classic marker distinguishing incitement from “mere” protected advocacy is whether time exists so that bad speech can be corrected by good speech. Such time clearly existed outside of Congress on January 6th, 2021. Trump did not urge his followers to storm the castle immediately. After all, the demonstration was initially “uptown” relative to the Capitol. Protestors had to march down Pennsylvania Avenue. They might have then hesitated as to what to do next. John Stuart Mill, in his class On Liberty, says that it would be legitimate to punish someone advocating burning down a corn dealer’s home in front of the home itself. But if one is advocating “merely” a march on the home from miles away, the situation is entirely different. One may or may not agree, but a great deal of free-speech theory is built on that distinction.
Trump did not explicitly mention specific unlawful actions. Perhaps the crowd, like those listening to Marc Antony’s eulogy to Julius Caesar, “knew” what he was “really” saying, but, like Shakespeare’s version of the clever Antony, Trump did not to use any magic words, such as “invade the Capitol and terrorize the members of Congress.” Moreover, the storming of Congress took place hours after he spoke to the gathering. All members of the mob had ample time to reflect on Trump’s statements and make a deliberate decision about whether to violate the law. One suspects that many of those listening to Trump decided not to join the mob moving toward the Capitol or refrained from climbing the steps.
Imagine that Trump had won a narrow victory in the electoral college, because of what could legitimately be thought to be the suppression of Democratic votes or, even worse, because Republican legislatures simply substituted a Republican slate of electors for the Democratic electors who had seemingly won the popular vote in a state. Some prominent Democrat might have given a far more articulate version of the Trump speech to a crowd of progressive protestors enraged, say, by the decision of the Republican-dominated Pennsylvania, Michigan, Arizona, and Georgia legislatures to substitute Trump electors for the Biden electors chosen by a majority of state voters. That speech would clearly be protected under Brandenburg, and not because we are more inclined to protect Democrats than Republicans.
The real problem is equating the President of the United States with an ordinary citizen or even a prominent leader. Unlike ordinary citizens, Donald Trump took an oath to maintain and uphold the laws of the United States, including the laws he disagreed with. We have no doubt that the president or relevant decision-maker could have constitutionally fired for dereliction of duty any other law enforcement official who gave the same call for lawless action to the same potential mob. There is a difference between Martin Luther King’s calling for civil disobedience and the same call issued by those who have taken an oath to enforce the laws of the land. The President should not be an exception to the principle that those in charge of upholding the law should not encourage the violation of the law. Disciplining Trump by removing him from office is even more pressing that would be the case for an ordinary police officer who gave the same speech in the same circumstances. As Ross Perot argued in 1992, the President of the United States is only an employee of the American people, no more, no less. If he does not live up to his terms of employment, including basic fidelity to the Constitution that he swore an oath to uphold and protect, he should be fired.
Common sense suggests impeachment is warranted when the president encourages persons to violate federal laws or interfere with the implementation of federal laws in ways that are likely to cause significant damage. Impeachment is particularly warranted when the laws the president encourages others to violate are at the core of constitutional democracy in the United States. This common-sense standard leaves presidents free to complain about existing laws, challenge those laws in courts, and even refuse to implement laws they believe unconstitutional. Brandeis’s claim in Whitney v. California (1927) that the First Amendment ought to protect the speech of persons whose advocacy of illegal conduct causes only minor harm, such as a trespass on unoccupied land, applies to presidential impeachment as well. Nevertheless, when a president, in essence, encourages a group of potentially peaceful protesters to transform themselves into an insurrectionary mob determined to interfere with members of Congress engaged in the solemn rite of certifying the identity of the next President of the United States, no one ought to care whether the First Amendment’s requirement of incitement and imminence or, for that matter, likelihood, are met.
Overlegalization is as much a plague on the Twenty-Fifth Amendment as on the impeachment process. The letter of the Twenty-Fifth Amendment suggests that implementation may be rapid. Make one of us the Vice-President and the other the cabinet, and we can produce the following letter in three minutes (90 seconds if we do not try to fix typos)
Dear Speaker of the House and President Pro Tem of the Senate:
The Vice President and majority of the cabinet have concluded that the President is unable to fulfil his duties. Therefore, under Section Four of the Twenty-Fifth Amendment, the Vice President will serve as President until further notice.
Thank you for your kind consideration.
Vice President Sandy Levinson
Secretary of Everything Mark A. Graber
The only reason this process might take longer than three minutes is if we had to document that the President is unable to fulfil his duties. The Constitution does not require such documentation. Nor does common sense.
Consider the various ways we might document that Donald Trump is unable to fulfill the duties of the presidency that would meet a more stringent Section Four. If a neurologist took an x-ray of Donald Trump’s brain that showed a deformity or conducted other tests demonstrating chemical imbalance that caused him to incite insurrection against the United States, Section Four would be met. We might find a psychiatrist or psychologist, many of whom we suspect are willing to testify that Trump has a psychiatric or psychological condition that makes him unable at crucial times to perform the duties of office. An obvious problem is whether Donald Trump would agree even to an x-ray, let alone a full neurological workup or psychiatric interview that could serve as the basis for a professional diagnosis. Would we really be dependent on his cooperation? Can we imagine forcing him to sit down and speak to the psychiatrist or taking the neurological tests? Could we substitute Mary Trump’s observations over the years about Donald Trump’s behavior?
Requiring the Vice President and cabinet to run through these hoops defies common sense. Donald Trump’s actions before, on, and after January 6th, 2021, demonstrate that he is unable to fulfil the duties of office. No one at this point should need neurological, psychiatric, or behavioral testimony to explain or document this inability. If a president repeatedly and at crucial times fails to fulfil the duties of office, that president should be considered constitutionally unable to fulfill those duties. Explanations are for doctors to hypothesize, not for politicians to worry about. Courts sometimes take “judicial notice” of what is obvious to all. “Judicial notice,” should be taken that Trump is not fit to exercise presidential powers—including powers as commander-in-chief of the armed forces to do God knows what—for even one more day.
Permitting the Vice-President and majority of the cabinet to determine whether a president is unable to fulfill the duties of the presidency no more threatens a coup than permitting a person’s chosen spouse and family members to determine that they are incompetent. The President selects the Vice-President and cabinet. Cabinet members can be fired at will. The Yiddish proverb that if two people say you are drunk, you should go lie down provides the appropriate standard. If the Vice President and majority of the cabinet, who have every incentive to be sycophants, maintain the President is unable to fulfill the duties of office, the President should go lie down.
Constitutional systems are run by common sense, not by legal technicalities. We should not overlegalize impeachment by demanding that the president engages in speech unprotected by the first amendment. Common sense dictates that a president who encourages a mob to interfere with congressional proceedings ought not to remain in office, even if such speech might not be subject to criminal punishment. We should not overlegalize the 25th Amendment by demanding professional certification. A president who publicly fails to fulfil the basic duties of office ought to be removed, even if no professional can document immediately the neurological or psychiatric causes of this failure. Presidents, in short, must meet the minimum standards of competence suggested by common sense. Donald Trump has not. Anyone, not a trained lawyer can easily realize his incapacity to exercise power. To the extent that lawyers do not, that raises more questions about the meaning of “thinking like a lawyer” than about the fitness of Donald Trump to continue in office.
Mark A. Graber is the Regents Professor at the University of Maryland Carey School of Law. He is the author of A New Introduction to American Constitutionalism (Oxford 2013) and Dred Scott and the Problem of Constitutional Evil (Cambridge 2006), a coeditor with Sandy Levinson and Mark Tushnet of Constitutional Democracy in Crisis? (2018) and the American Constitutionalism series with Howard Gillman and Keith Whittington. All told Professor Graber has published more than one hundred books, articles or essays on constitutional law, constitutional history, constitutional development and other subjects in which “constitutional” is used as an adjective.
Professor Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law, University of Texas at Austin School of Law. Professor Levinson has published approximately 400 articles, books, book reviews, and commentaries with various journals and major publications. He has been a visiting faculty member at a number of universities both in the US and abroad in London, Paris, Jerusalem, Australia, and New Zealand.