• We The People Podcast

Impeachment, Incitement, and the First Amendment

February 11, 2021

Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the impeachment clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions.

Some terms that will be helpful to know this week:

  • “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is:
    • “directed to inciting or producing imminent lawless action” AND
    • “likely to incite or produce such action”
  • Impeachment: per Article II, Section 4 of the Constitution:
    • “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”



Catherine Ross is Fred C. Stevenson Research Professor at George Washington University Law School and is the author of multiple books. Her forthcoming book is A Right to Lie? Presidents, Other Liars, and the First Amendment.

Josh Blackman is Professor of Law at South Texas College of Law in Houston. He is the author of three books including An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know (2019). He blogs at JoshBlackman.com and Reason.com, and his work has been cited by President Trump’s defense team during this second impeachment trial.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

This episode was produced by Jackie McDermott and engineered by Greg Scheckler. Research was provided by Lana Ulrich, Angelys Torres, and Alexandra "Mac" Taylor.


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This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center, and welcome to We the people, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the Constitution among the American people.

This week, the Senate began the second historic impeachment trial of former president Donald Trump. Today, we will debate the merits of the impeachment charges. Should former president Trump be convicted of the high crime and misdemeanor of incitement to insurrection? To debate that question I'm joined by two of America's most thoughtful scholars on the first amendment issues raised by the charges of incitement, of insurrection, and two of America's leading constitutional commentators.

Catherine Ross is Fred C. Stevenson research professor at the George Washington University Law School. She's the author of many books, including the forthcoming, "Right to Lie: Presidents, Other Liars, and the First Amendment." Catherine, thank you so much for joining.

Catherine Ross: [00:01:16] Thank you for having me, Jeff.

Rosen: [00:01:18] And Josh Blackman is professor of law at South Texas College ofLaw in Houston. He's the author of three books, including "An introduction to constitutional law, 101 Supreme court cases everyone should know." He blogs at joshblackmandotcom and reason.com. Josh, it is wonderful to have you back on the show.

Josh Blackman: [00:01:39] Thanks, Jeff.

Rosen: [00:01:40] Catherine, let's begin with a legal question. If President Trump were to be charged in a criminal trial of incitement to insurrection, would his conduct meet the standard articulated in the Brandenburg case, which says that even advocacy of violence is protected unless the speech is directed to and likely to incite imminent violence.

Catherine Ross: [00:02:09] Okay. Let me just focus on the three parts of Brandenburg, first. Eminence is usually the hardest to satisfy and the way that you framed it, people might have missed that point. And it has to be directed to either inciting or producing imminent violence. Producing is arguably a little bit different. Mitch McConnell, for example, said he provoked the violence and then people might nitpick. Is that inciting? Or producing? Or something else entirely? I think it meets the standard. And is likely to produce. So, the eminence is not problematic at all in this case. And as I said, it's usually the stumbling block. Because he said in the middle of his speech, we are going to walk and I'm going to walk with you to the Capitol.

And when we put that in the context of the whole speech, which I'll come back to, he's saying we're going to do it right now. And at the very end of the speech, almost the last thing he said, was "walk down to the Capitol, right now." So, the hypo that you use in a law school class for Brandenburg is that instead of Brandenburg talking about some potential future violence at this clan meeting, where he was speaking and where a cross was burned, if, instead of saying you know, we're planning to March to Washington in a few months -- a few months is nothing imminent -- if something doesn't happen, that satisfies our demands. So it's not even a definite plan and it's certainly not imminent. If instead of that, he had said, let us walk from here to the nearby home of a civil rights leader and burn a cross on his lawn. Or he didn't even have to go to and burn across and let's just march right down there and do something.

And everybody would hear that as something we're not supposed to do, something illegal, that would be eminence. And that's exactly what Donald Trump did. I know that his lawyers will argue it was something else. He just wanted them to take a nice walk and stand around. But the second part of looking at this as a legal matter is very important to understand context.

So, context means not just some magical word, go break the law, but understanding how a listener would hear it. And there's a conflict in the courts about whether the listener has to be an objective person or a subjective person and I would say, so that means an objective listener is the average person, or is it the values and understanding that an individual brings to subjective understanding. So, clearly he met the subjective understanding because many of the people who were at that rally went ahead and stormed the Capitol and they brought arms and they hurt people. But objective listeners also heard it that way, because while this was going on, it was being carried live and newscasters were saying, and I was saying in my home, omg, he is telling them to go stop the Congress from what it has to do today, from its constitutional obligation to confirm the results of the election. So, the listener heard it and he knew that they were likely to respond. And this goes to an even broader context, one because of what they were shouting while he was talking -- "fight for Trump, fight for Trump.

And he used fight language more than 20 times. And once he used the word "peacefully." You know, if you could just save yourself by putting in peacefully, every speaker for the rest of however long this country survives is just going to throw in "peacefully" while saying, go burn the white house down, peacefully.

You know, that that shouldn't be a saver. And it was likely to produce such action because he had to have known, he had to have known all of the social media, right upfront, public conversation about we're going to storm the Capitol. And how do you bring weapons to Washington? What are the gun laws there?

There were postings about using 3d printer guns because you could take them on planes. He's in the White House. He has a staff. We have to assume that he knows this. So he even setting aside everything he did to lead up to this moment, which the House managers talked about a lot yesterday and I hope we'll come back to. So, I think he meets the Brandenburg standard.

There are however, and the communication and the Supreme Court has held in a case called Hess that the communication, the encouragement can be implicit. It does not have to be explicit. You don't need magic words to satisfy Brandenburg. So the issue with the criminal trial is it has to be proof beyond a reasonable doubt.

And so, people might say, well, do we have beyond a reasonable doubt on the words he used? I don't think a reasonable jury could find that, but that's the role of jurors. And we all also have very different rules of evidence in a criminal trial than we have in the Senate, but I'll come back to some of those things when we talk about the difference between what's going on in the Senate and a criminal court, but I think a criminal court could convict him. And that would, of course, we don't have the level of criminal investigation that would go into, you know, a grand jury proceeding and an indictment and to trial.

Rosen: [00:08:28] Josh, Catherine has just argued that President Trump's conduct would meet the Brandenburg criminal standard that the violence was imminent, that both subjective and objective listeners would understand it as incitement, and that he had to have known about the foreseeable consequences of his actions. You've written that you disagree. Given the requirement of eminence, you wrote your view is that Trump's December 19th tweet about an event more than two weeks away would not be sufficient under Brandenburg's incitement standard. The speech he gave on the morning of January six presents a closer call. But nevertheless, you conclude that the standard is not met. Please tell us why not.

Josh Blackman: [00:09:08] Sure. And Jeff, again, it's a pleasure to be back on your show. I've done this many times. I always enjoy it. When we think about imminence, we should remember the actual location of the speech. It was given in a place called the White House ellipse, which despite its name, isn't  actually in the White House, it's outside the White House grounds. For those of you who have not been to DC, the White House is about a mile and a half away from the Capitol. At a brisk pace, it's a 30 or 40 minute walk.

I don't know that anyone took the subway, I guess maybe a little bit quicker. I don't think any Uber's running that day. So it was a better 30 to 40 minute walk. The timing here is important. There've been many cases where someone has suggested that there'd be some Wallace action that happens in the future.

As I read the case law, and maybe Catherine disagrees, imminence means right now, not at some indeterminate point in the future, not later, now. And I think the 45 minute walk is something of a cooling off period. I do think it has that role and I think it is harder to show imminence when you have that sort of gap.

Also, the incursion of the Capitol began long before Trump finished speaking. And, if you look at the timeline, some people were trying to break through the Capitol as he was beginning to speak. I think it becomes harder to show that Trump's speech was the cause or intended to cause what people were doing before he even got there.

People were ready to go in advance. Now, perhaps that goes to the conduct that occurred before January six. But I don't think that Brandenburg countenances an incitement charge based on a month long pattern of practice. I also, I respect Catherine's opinion and I recognize the division of authorities. But I think it's too contextual. I don't think you can go that far out of line. Now I have another  Trump case to cite. There was a Trump rally a couple of years ago, or I guess in 2016, where he encouraged someone who was to Kentucky to get someone out of here, to get him out of here. Right? And, there was a charge on whether he was inciting violence and the court, the district court ruled in favor of the plaintiff in that casing, that Trump was inciting violence and the court of appeals reversed and the court of appeals said that doesn't work under Brandenburg, right. Perhaps people would have understood Trump's, you know, secret code-talk, you know, Qtalk, call it right.

 Where, when he says get him out of here, he means to rough them up versus half security remove them. But that wasn't the appropriate standard, right. And indeed, Trump made some commenting, don't hurt the person. Right. So, indeed injecting some remark of levity or some remark of peacefulness does negate any sort of intention for incitement.

Given those precedents, I would not want to be the U.S. attorney bringing this case. If we forget that it was the president, it was just, you know, John Doe or a random person. I don't think you have eminence. I don't think you can show intent. And I think he was, if you actually want to try to prove intent, his intent would be to stop the counting of the vote.

I think that's what he was trying to do by exerting pressure, not by breaking into the Capitol, but by having people protest and perhaps having members of Congress second guess and reconsider what they were doing. I recognize that that there's a wide range of opinion on this issue, but in a criminal justice context, putting aside impeachment, I think this would be a very hard case to bring.

And let me just make this point more broadly. The Brandenburg standard was a novel test. Right before Brandenburg, we had another test in the early 20th century. Jeff, you're gonna know this one cause it's one of your icons, but one of the dissents in this case or joined the dissent, but we originally had the clear and present danger test, the so-called bad tendency test and Schenck and Debs, where if your speech has a tendency to lead to violent harm, the government can   prohibit it.

And that was a Justice Holmes  opinion. And then, shortly thereafter, you had Abrams, which Justice Holmes dissented in joined by one of your icons, Justice Brandeis. And Justice Holmes was skeptical of this clear present and danger test. He never quite abandoned it, but he expressed skepticism because when you give the government the power to punish speech that could lead to violence, there's a very thin line between speech that can lead to lawful opposition to government practice, such as opposing the draft, and perhaps unlawful, which is rioting.

And if I had to draw a line, I would always earn the side of free speech. Ex-ante, right. Ex-ante, we didn't know what happened. Maybe Katherine did. I wasn't so sure. Ex-post, we saw these awful pictures of the Capitol. But I think when you're bringing a criminal indictment, you really need to base it on what was going on at the ellipse at the time. Not the subsequent events and indeed the events happening as Trump was speaking. I think we need to sort of separate these two elements. If this was a purely criminal process, I don't think Trump's conduct would fall in the Brandenburg exception and I don't think he can be convicted for his January six speech.

Rosen: [00:13:34] Catherine, Josh just argued that President Trump's conduct would not meet the intent standard or the imminence standard. And that we should judge merely the speech on January 6th and not go back several months. And he invoked Holmes and Brandeis, who emphasized the importance of defining imminence very narrowly in order to protect political dissent. What is your response?

Catherine Ross: [00:13:57] Well, first no one, except perhaps Jeff, admires the work that Justice Holmes and Brandeis did on creating our modern first amendment doctrine. And their general view of free speech is also mine: that it is a critical element of any democracy and we can't survive without it. And so they were very protective. And that is the reason that the Brandenburg test is so difficult to satisfy. So, we're all in agreement about that. And it's also a reason why I would not be totally distressed if the government concluded that it couldn't convict President Trump in a criminal trial with the higher standard of proof and some of the ambiguity on which a jury might come out either way under the criminal standards. And that might in fact be the best of all worlds here because first amendment advocates, and serious  respecters of the Constitution,  very much want Brandenburg to continue to protect strenuous advocacy that does not lead to illegal action. I will say Josh's example of the Vietnam War, is perhaps not the best one because many Vietnam War protesters committed unlawful acts, not just violent acts, but many of them resisted the draft.

They had to flee the country. So in a different conversation, we might explore what comments made by leaders of the anti-war movement might have seemed like incitement to illegal acts and in a very famous case, a guy burned his draft card and he spent years in a federal prison. For destroying a draft card. So, I'm not wild about that analogy, but that is a slight detour. The imminence, I have to really disagree. Because it is a short walk. It's very walkable. People walk it every day. Under Josh's standard, you would have to be standing outside the place where you wanted to commit the crime. And that's not how these things usually work.

They don't usually say, we're going to hold a rally at, you know, civil rights leaders home. And during that rally, I'm now going to tell you, now we're going to commit a crime against the civil rights leader. And I used that example because so many of these cases, including Brandenburg, come from the civil rights era and those hard-fought battles. So his imminence rule just would mean, no one could ever meet the Brandenburg standard. And there's a civil case, that is, I think the furthest anybody has ever gone with Brandenburg, in which a disc jockey in Los Angeles had a contest. And he said, the first people to get to this particular corner will win a prize.

And a young man died in a car accident racing to get there. So, that is less imminent than Josh's interpretation of what happened on the sixth, and also, less predictable. And the court said, you know, he intended people to race their cars. It's foreseeable when that happens, somebody could die, and it was certainly more disconnected than marching from a protest on the ellipse to the Capitol. And when you all march together, that takes longer than it normally takes. I would say it's more like a 20 minute walk. And by the way, the Metro was closed because of the prediction that there was likely to be violence that day in the District.

And that's why all the streets were also closed off. This wasn't a setting where, Oh my gosh, how could something have happened today? Which, which also goes to the objective listening. And as to the fact that there were some people there earlier in the day and some people there while Trump was still speaking. Trump said in the middle of his speech, we're going to go to the Capitol now. I'm going to go with you. It is reported that a lot of people left at that point and headed to the Capitol to start this. And in the morning at about seven o'clock, he had tweeted, you know, we're going to stop the steel today.

So to the extent that people showed up right after that we can also connect that to Trump. And the reason, no one is saying it, I certainly would never say, that either his December 19th invitation come to Washington, it'll be wild. Or all of the things that he said trying to delegitimize the election and all of the things he did trying to delegitimize the election, which convinced his supporters that they had been robbed, that our country was in danger, that they would be Patriots if they did. And he told them during his speech, whatever's necessary, different rules apply when somebody steals an election, I'm paraphrasing, but that's what he told them. You need to understand all of that because it goes not only to having primed the pumps so that when he opened it up, things exploded.

I guess I'm mixing metaphors. But also, what hit the people who came to Washington, understanding they were coming on his orders to save the country. You have to look at that context and the doctrine and all of the cases. Tell us not only that we can look at that context, but that we must and looking at that context has to be understood for what it is. It's not saying that any of those earlier statements would rise to imminent incitement. They don't. But January 6th, if that doesn't satisfy the test, no one will ever be convicted under Brandenburg again.

Rosen: [00:20:10] Josh, any final thoughts you have on Brandenburg would be welcomed, but then I'd like to broaden the question to the charge of high crimes and misdemeanors. Most scholars agree that conduct does not have to be criminal in order to meet the constitutional standard of high crimes or misdemeanors and, the House managers' indictment alleges that President Trump's incitement of insurrection endangered the foundation of our government by violating his oath of office and to faithfully execute the office of President of the United States, attacking the democratic process, imperiling Congress, undermining national security, and that there's no first amendment defense to those actions. So please address this broader question of whether or not President Trump's conduct meets the Brandenburg standard, do you believe that it constitutes an impeachable high crime or misdemeanor?

Josh Blackman: [00:21:01] Sure, happy to move on from the criminal to the impeachment context. During President Trump's first impeachment trial, 1.0, about  a year ago, his attorneys argued that only statutory established offenses can give rise for impeachment. And that's not been my position. I do think you can have impeachment without needing a specific statutory offense. To use an example, let's say the day after George Washington's sworn in there's no federal criminal laws, yet he murders someone. Okay. I think, GW could have been tried for murder, even the first day after Congress met and they hadn't established any criminal laws.

I'm okay with that. Beyond that gets a little more tricky. Jerry Ford, who became president, but  was very influential for a time, once said that impeachment is whatever a majority of Congress says it is, right. The high crime misdemeanor is whatever Congress says. In my heart of hearts, I can't accept that. As a law professor, and with two other very smart law professors, I think that  one also kind of rubs me the wrong way. There has to be something to go on. And I do think that there's a fairly deeply rooted tradition of impeachment in the Anglo-American history. And I think this standard of impeachment refers to what you might call fiduciary offense, where a person who's an office holder breaches some duty he has in office. What exactly that duty is, is a hard question. I think people simply say he violated his oath of office. Well, that's circular, what's your office, right? You need, you need something to tell you what it is. The charge that the House lodged though, was something very specific.

It was a charge of incitement of insurrection. They could've passed a very simple resolution saying he violated his oath of office. That's it. But they chose to ground it in something approaching the Brandenburg standard. Now they deviated in important ways we can get to later, but they at least chose to ground it in terms of incitement. Had they passed a one-sentence article saying his conduct over the last year has violated his oath of office, I think a lot of the arguments I'm making here would not be relevant, but the fact that the House chose to at least move towards an established legal standard opens him up to saying, have they satisfied that standard, right? The fact that the House brought law into this means I think law does govern.

Now, let me give you my general thinking on how impeachment overlaps with law. So in my view, I think there are two general types of impeachable offenses. There might be what we call a public offense, which is where the president uses some of his powers of government in perhaps an abusive fashion and so-called abuse of power. When the president uses the power of his government in an abusive fashion, I don't think you need to rely on the so-called statutory or established law. I think the sort of fiduciary model works quite well. Hamilton, Storey and others discussed the wrongs of public men, where they use their offices for harm.

If you only were focusing on the sort of public acts where they use their power, we don't need specific established law. But then we also have what I think you might call a private act, which is the George Washington murder case, right. The president can engage in a crime, just like anyone else. He can kill someone. He can jaywalk, right? He can do lots of different things. When the House wants to impeach a person for violating one of these private wrongs, I think you need some law to go on. It doesn't have to be a federal statute, but there has to be some basis in law. And this, in my mind, relates back to the idea of fair notice.

When people are in office, they're expecting themselves to hold to a higher standard. But when people are sort of outside their office and even presidents are allowed to have private lives, Bill Clinton told us that quite well. There's a lower standard, there's a lower burden. And, with that lower burden, before you try to impeach the president, they should know roughly what is expected of them, right?

Bill Clinton was impeached for perjury. He wasn't impeached for fornication or adultery or some such, you know, some such offense, right. There was established law for that trial. So in my view, and this is something I've written with Seth Barrett Tillman from Ireland, in my view, the speech given at the White House ellipse was a private act.

It was not given on the White House property. The President was speaking to his constituents, he wasn't using the power of government to to create a riot. We'll get to perhaps stuff that came before or after the speech, but just the speech itself was, it was a speech for constituents. And I think there's a fairly long-standing history where the president is sort of allowed to be a politician.

The Hatch Act, for example, restricts almost all federal employees in their political speeches, except for the president. When the president speaks, I think he does have rights. And this leads to the general point, even in the impeachment context, when the Senate is trying to remove a president for engaging with these private acts, I think there should be some established law. Now that standard perhaps need not be Brandenburg. That's a 50 year old case or 60 year old case. It's somewhat novel. But, whatever the established law is that people understand for an incitement, I think that's what should govern these proceedings. Now I know my position is controversial. People don't like my position.

They think that it's a political process. The Senate can do whatever they want. They can just focus on did he violate the oath. That's fine. I don't think that poosition is wrong. But I do think there's some evidence, which I'm happy to marshall in the course of this conversation, of why the first amendment ought to apply, and in past impeachments has applied, from this context.

Rosen: [00:26:07] Catherine, let's focus on the substance of the case the House managers are presenting. They argued if the president violated his oath of office by subverting the democratic process, by attacking illegally and unconstitutionally, a host of actors, namely one ignoring adverse court rulings, and arguing that they should be subverted; two, pressuring election officials leading to a criminal inquiry and Georgia; three, attacking senators and members of Congress verbally and encouraging them to be attacked physically; fourth, pressuring the JusticeDepartment to subvert the election results; and five, attacking the vice president and encouraging him to engage in unconstitutional actions and, egging on the mob to harm him.

Do you find their case to meet the standard of high crimes and misdemeanors? And what do you make of Josh's suggestion that there should have to be some sort of underlying violation of the law for each part of those charges in order to make out an impeachable offense?

Catherine Ross: [00:27:10] Okay. So before I answer Jeff, I just want to very briefly say to Josh, he was talking behind the presidential seal. He was not talking as a private citizen on January 6th. So, the bigger questions are really important ones. He sought to undermine our elections and the faith in elections, which is a key to having a functioning democracy. That is definitely a violation of his oath of office to protect and defend the Constitution. To the contrary, he was undermining the Constitution. And that was true in all of his statements about electoral fraud and his refusal to concede, which remains in place. His attacks on Congress and on individual Congress persons, which placed their lives in danger and was accompanied by things like not speaking up when his supporters wanted to kidnap and murder the governor of Michigan.

His tweet, I love Texas, when his supporters tried to run a bus of campaign workers for Biden off the road. This is direct conduct interfering with our history of free and fair elections. Trying to get the Department of Justice to file lawsuits on his behalf. Asking them to investigate is more marginal. But saying, throw the DOJ behind efforts to overturn the votes of tens of millions of Americans so that I can be declared the winner, is the kind of thing that happens in an objectively totalitarian state. And I have to say that for Barr, at some point he said enough is enough. And then attacking Vice President Pence and calling him basically a traitor and saying he wasn't doing his job. He didn't have the guts to help Trump retain the presidency illegally. To overturn a democratic election and making him the target of this mob so that people built a noose, and were saying, hang Mike Pence. I can't think of a more insurrectionary act as well as endangering, you know, Nancy Pelosi who was third in line, I mean second in line, after Trump.

So endangering both of the people in the constitutional line of succession is -- it renders me speechless. It is so clearly a violation of the oath and it wasn't just like failure to take care. It was a frontal assault on our constitutional system, which he had sworn a solemn oath to protect as president.

Rosen: [00:30:10] Josh, you've just heard Catherine make the case very directly that President Trump committed a frontal assault on the constitutional system by actively trying to subvert the results of the election, actively asking state officials to overthrow it, actively attacking officials like Vice President Pence and encouraging and not stopping the acts of violence on state governors and Congress people, and all this adds up to an insurrectionary act, which is a quintessential high crime. Your response?

Josh Blackman: [00:30:41] Well, sure. And I think this is a very thoughtful discussion. I'm grateful for Catherine's comments here. The House absolutely had to move quickly. They wrote  this thing in basically a couple of days and they had him impeached within a week. They also held onto the articles for some time because they wanted to have a  favorable Senate before they transmitted it.

So, I don't think their goal was removal right away, if they did, they would have moved more quickly. But they took shortcuts. They didn't have any hearings. There's no sworn testimony. Last night during the hearing they introduced some statement from the press about what Senator Lee apparently said, and Senator Lee said, I never said  that, andthey had to strike  it  from the record.

I think you have to take the record as we have it. We have the article. There's no hearings. You have no sworn testimony and that's the basis on which we have to impeach. So, we have the public acts, which are Trump's speeches. We have a lot of secondhand allegations about what Trump told people; they're unsourced.

I would be very hesitant if I were a Senator to convict the president based on what a newspaper put as an unsourced publication. I just, I would be very skeptical. You take the, you take the case as it's brought to you, and I think there's certain evidentiary issues, which may not apply, but as a Senator, I can discount an unsourced statement. I think that's within the realm of possibility. But the broader issue, right? The broader issue here, I see three specific heads of conduct.  There's the stuff that came before the January six speech. There's the January six speech itself. And then there's the stuff that come after January 6th. Right?

The stuff that came before January six, I think Trump was trying to leverage existing mechanisms in the law to make him president. There is a process by which the electoral count act allows, in theory at least, Senators to object. And they've done in the past. And Trump had a delusion perhaps that enough Senators would step in and perhaps decertify the vote. That was not going to happen. There's a legal theory, which I think is flat wrong, in which the vice-president, who counts the votes, can decide to decertify. There's some history here. If you remember, in the election of 1800, Thomas Jefferson was the candidate for president and he counted the electoral votes.

And there's some evidence that he may have counted the votes in his favor, that he made some judgements that some votes weren't legible, that some votes weren't clear and he made some judgements. Look, I think this is wrong, but there's arguments you can make. The phone call to the Georgia secretary of state pain fact be criminal. And that might be an issue for Georgia law, put that aside for now. But the actual messages to his constituents was to exert pressure on members of Congress to oppose the certification process. That is a lawful act. Without question, it didn't turn out that way. Right? It turned into this gruesome violence which we were watching in these videos, which was just making me sick to my stomach.

Okay. That's conduct before January 6th. The speech itself again, Trump uses a seal at all of his campaign events. He's a candidate for office in 2024. That's not going away. I think he's going to run again. The president's a politician. And I think we have to be able to separate the president's two bodies.

He's not always acting as president. This is not about in court. Official capacity was individual. It was a private act. He wasn't using the instruments of government to give that speech. It was a speech of constituents. So I think the Brandenburg standard would govern this specific act. Now the stuff that came afte the speech, I think is perhaps what's problematic. I've read reports that he sort of stood by and perhaps frustrated the national guard and various elements of the government to intercede. He perhaps was smiling at the TV when he was watching these incursions. There are allegations that he made it more difficult for intervention.

If there's evidence that Trump intentionally ordered people to stand down, to allow this insurrection to occur, I'm with you. Convict. But I haven't seen it. All I've seen is just sort of unsourced statements, which again, you need to do better. The House could have had a hearing after they impeached him, right?

The Congress doesn't stop its job. They could've had a hearing over the past month where they brought in people from the Pentagon, people from various agencies and the national guard to testify under oath. But what happened? What was the exact chain of command? But all we have are newspaper articles.

I love newspapers, Jeff. I do. I really do, but I need something more than -- I need sworn statements. So if we're going only based on allegations which happened after the fact, I think the House needs to do more to meet their burden. It's obviously these are atrocious videos, I think they should show some intent, some men's rea, something specific that happened after the fact that Trump tried to subvert the process. But merely sitting back and saying he's smiling at the TV. That makes him immature. That makes an awful human being, right. A deplorable, to perhaps use the word we've done before. But to violate the oath of office, you need something more than that. And especially now that he's out of office, I think the urgency has lessened. If they had done this, if they delivered the articles the next day, if I were a Senator, I think I'd be more likely to convict him of office, but that would be more deliberative, right?

Let the House hold a hearing, maybe recess a trial for a few weeks. He's not going for office anytime soon. He can't run until another election. Have a hearing! Give sworn testimony. You know, there are discussions, we have witnesses next week. Like, no we not want to get it over and vote in the stimulus. Okay. So then we have to take the articles as it presents it and the record presents it.


Rosen: [00:35:37] you just heard Josh argue that Trump's conduct before January 6th was largely an attempt to leverage existing law to oppose the certification process. That his speech itself on January 6th was protected by the Brandenburg standard and that what came after January 6th, might've been problematic, but he didn't see evidence of an intentional order to allow the insurrection to occur. Your response?

Catherine Ross: [00:36:01] Yes. First I just like to tackle this issue of the House holding on to the bill of impeachment and the reason that they did that, as I understand it, is that Senator McConnell made it very clear that if they delivered it, he was not going to hold any process moving toward the trial until after the inauguration and indeed until February.

So, for the senators now to say he's out of office, the Republican senators, he's out of office it's too late or with all respect, Josh, for you to say that shows that they didn't think it was urgent, they really were boxed in, they didn't have control of the Senate yet. Not only because the committee chairman's ships had not been transferred, because they had not reached a governance agreement and McConnell stonewalled on that to get through that time period, so that Schumer would not be the majority leader and the Democrats wouldn't have the committees and time to get that trial going. So that is just a smoke screen or a red herring or whatever you want to call it. It's not a credible argument. To the substance, I agree that the Brandenburg standard, and I've hinted at that before, is different in the Senate trial.

The most important distinction is that there is no minimal standard of proof that is required. Each Senator decides what standard of proof they think is appropriate for this noncriminal proceeding. And that means they can use a civil standard. They can use a modestly elevated standard, but they don't have to use beyond a reasonable doubt.

And there's a lot of good argument for why they should use something less than beyond a reasonable doubt. The most important is that the Constitution expressly provides that after impeachment and removal, the person who has been impeached and removed can be indicted and tried in a criminal court that would be just duplicative with different drawers if all the same rules applied. There was an understanding from the very beginning, these were two really different kinds of procedures. So, it is very easy to find the Brandenburg standard satisfied in the Senate even if it wouldn't hold water ultimately before a criminal jury. So, the urgency is not lessened because Trump is out of office.

It is perhaps equally urgent because if Trump is acquitted, there is a grave danger, that the message that this sends to future presidents and the thing the founders were most concerned about as they communicated in the Federalist papers was the specter of tyranny. Of somebody who thinks he's a king, who doesn't want to give up office, who abuses his power to stay in office. And they used the word tyrant. And here we have people who stormed the Capitol, calling Trump an emperor. An emperor and he did not correct them. In fact, he's a president talking about the things before January six, he's a guy who said, he really thought that Premier Xi of China had the right idea when he changed the Chinese governing documents, so he could be in charge for life. And he said the same thing about Putin. So, he's not a guy who said -- he doesn't have an obligation to stand up and say, oh my followers, you got me wrong. I don't want to be an emperor. That's absurd. He's the guy who had them chanting, 12 more years. So again, context, context, context.

We have to understand who he is, not just look at one sentence that he sometimes said. So what he did after continuing not to rebuke it, saying there was nothing wrong with his speech. All of that needs a constitutional slap down.

Rosen: [00:40:20] Josh, Catherine has just argued that if this conduct is not impeachable, nothing is impeachable. Tha the core of the framers concern was to prevent tyrants from abusing their power to stay in office and that's what Trump did. Your response?

Josh Blackman: [00:40:35] Oh, we need a slap down all the time. I think it's actually, I should use that term in class. I liked that. Thank you, Catherine, that was a very thoughtful answer. You know, it's a common argument. If this isn't impeachable, then nothing is. I heard the same thing last year. Right. I still have deja vu, maybe it was on your podcast, of this same sort of argument. Trump's conduct very well may have been impeachable, but the case the House has presented so far doesn't make it.

I didn't mean to say that the fact that they held onto it made the charges less pressing. I think the argument's different. They they could've impeached him. There was no election coming up for another at least two or perhaps four years where people may be worried he might run again in, and they could have hearings they could've done other things to provide a record. I truly think  the conduct leading up to January six was, he was trying to use the levers of power that are allowed. There's the electoral count act. There's an argument that states have the power to override their voters. There is independent legislature doctrine thinking that courts, state courts can't make decisions.

We can agree to disagree on those legal decisions, but he was relying on levers of power. He filed frivolous lawsuits, and maybe those are worthy of sanctions, but that's using the power of government. He was not urging people to burn down the Capitol in order to stop the vote. And I don't think that you can show that was his intent, either in a criminal process or even in a political impeachment process. And absent some very good evidence, I wouldn't presume that was his intent. With respect to the content that came afterwards, I think the House perhaps could make the claim that this is conduct worthy of removal. But they decided to move quickly and have no hearings. And if they decide to show no witnesses, I think that speaks to the fact that they're not really interested in the conviction. Right. I get McConnell was going to bulwark it. Fine. Deliver the articles, put political pressure on him to accept it. Right. Put pressure on the majority leader to just do something. Maybe it works, maybe it doesn't. But I think that the House could have put pressure.

If the manager say no witnesses, we don't care. We'll just go forward. Then I think that speaks that they had other priorities. That this is sort of a, you know, I don't want to say side show, but this is not something that they're taking seriously enough. They have as much time to put evidence in and if they choose not to, then you can vote to convict her or quit accordingly. You take the articles as they're presented. Not the case that you perhaps would have wanted them to bring.

Rosen: [00:42:49] Well, it's time for closing arguments in this extremely thoughtful and illuminating discussion. Catherine, the first one is to you. In just a few sentences, please tell our We the people listeners, why you believe that president Donald J. Trump should be convicted of high crimes and misdemeanors.

Catherine Ross: [00:43:08] So the conviction is essential to the preservation of our democracy. That is what the stake is here. And the evidence is largely public, while there are some other things we might have liked to know, we don't need to know them for the standards that apply in a Senate trial. And the events speak for themselves. Trump's words, speak for themselves and his overall posture toward elections and the Constitution speaks louder than anything. And it is crucial to convict him. And it is almost inconceivable how somebody's confronting this evidence, if they're taking their oath as a juror in the Senate could vote to acquit.

Rosen: [00:43:55] Josh, the last word is to you. Tell our We the people listeners, while you believe that president Donald J. Trump should be acquitted of high crimes and misdemeanors.

Josh Blackman: [00:44:05] I don't know if that's my point. I think senators can reach a reasonable judgment either way. I think it's a mistake to view impeachment in sort of binary fashion, he is or is not guilty. Perhaps senators are not jurors, but they do have judgment to themselves. And I think certain senators must consider the evidence presented. For those acts, which I consider a private act, the January six speech, if I were Senator, I would look to the conduct. I would look to established law from the courts. The president is an elected position. He's a public figure nationally and whatever the widest latitudes are free speech doctrin, I'll give him that benefit. For private acts, I think you can use a more lenient standard based on fiduciary law. The stuff that came before January 6th in my mind was  exercising the powers of government in a lawful fashion, trying to use electoral count act to use the courts to challenge election results. Frivolous arguments in my mind, but they're their arguments that can be used.

The actions that came after January six could perhaps be aiding insurrection. But the managers have not presented that evidence yet. And if I were a Senator, I would take them to heart. Perhaps if I were a Senator, I'd say, well, the New York Times, Washington Post trustworthy, I'll go with them. Or a Senator could say managers, you made a charge, prove it. And if you fail to prove it, I vote to acquit. So I think in good conscience, the Senate can go either way in this one.

Rosen: [00:45:18] Thank you so much, Catherine Ross and Josh Blackman for a thoughtful, nuanced, and highly illuminating discussion of the substance of the impeachment trial in the highest tradition of the We the people podcast. Catherine, Josh, thank you so much for joining us.

Catherine Ross: [00:45:35] Thank you, Jeff.

Josh Blackman: [00:45:36] Thanks Jeff. Thank you, Catherine.

Catherine Ross: [00:45:38] Thanks. Josh

Rosen: [00:45:43] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Mac Taylor, Angelys Torres and Lana Ulrich. Please rate, review, and subscribe to We the people on Apple podcasts and recommend the show to friends, colleagues, or anyone anywhere who is hungry for constitutional illumination and thoughtful debate. And who isn't?

And always remember that the National Constitution Center is a private nonprofit. We rely on the generosity of people from across the country who are inspired by our nonpartisan mission of constitutional education and debate. Thanks so much to those of you who've been giving $5 or $10 just to signal your support of the mission. And please join the National Constitution Center family by becoming a member at constitutioncenter.org slash membership or giving any donatio at constitutioncenter.org forward slash donate.

On behalf of the National Constitution Center, I'm Jeffrey Rosen.

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