OF DONALD J. TRUMP, 45TH PRESIDENT OF THE UNITED STATES OF AMERICA
OF DONALD J. TRUMP, 45TH PRESIDENT OF THE UNITED STATES OF AMERICA
Harvard Law School professor emeritus Alan Dershowitz said Thursday that the House impeachment brief against former President Donald Trump, which seeks to undermine Trump’s First Amendment-based argument in his defense, amounts to a dangerous broadside against the freedom of speech of all Americans.
Writing in an op-ed for The Hill, Dershowitz made a case against a key argument contained in the brief (pdf), namely that “the First Amendment does not apply at all to impeachment proceedings,” signals Congressional willingness to take aim at freedom of speech more broadly.
“The brief filed by the House managers advocating the conviction and disqualification of citizen Donald Trump contains a frontal attack on freedom of speech for all Americans,” Dershowitz wrote. “It states categorically that ‘the First Amendment does not apply at all to impeachment proceedings,’ despite the express language of that amendment prohibiting Congress from making any law, or presumably taking any other action, that abridges ‘the freedom of speech.’”
The legal scholar then challenged another statement in the brief, namely that “the First Amendment exists to promote our democratic system.”
“This categorical statement surely would have surprised the Framers of the First Amendment, who believed in freedom of speech but not so much in democracy,” Dershowitz wrote. “The Framers of our constitutional system thought they were building a ‘republic,’ with limited suffrage and many checks on ‘democracy,’” he added, arguing that freedom of speech is “essential to keeping it a republic, but not necessarily a democracy.”
“So, no, the First Amendment does not exist only to ‘protect our democratic system.’ It exists to protect our liberty, regardless of what system we choose,” he wrote.
Dershowitz said that the argument made by the authors of the House brief that the First Amendment “doesn’t apply to presidents or others who ‘attack our democracy,’ is the same as that made by Sen. Joseph McCarthy and his acolytes decades ago “when they sought to deny First Amendment protection to communists and others who were seen as enemies of democracy and who, if they had come to power, would have denied the rest of us our freedoms, including that of free speech.”
“Freedom of speech must include those who would replace democracy with other systems of governance. It must even include those who advocate severe restrictions on freedom of speech, as many young left wing radicals do today. They, too, must be allowed to express their dangerous views,” he argued.
The House brief argues that the First Amendment protects private citizens from the government but “it does not protect government officials from accountability for their own abuses in office.”
Holding Trump “accountable through conviction on the article of impeachment would vindicate First Amendment freedoms—which certainly offer no excuse or defense for President Trump’s destructive conduct,” the brief’s authors argue.
“Even if the First Amendment were applicable here, private citizens and government officials stand on very different footing when it comes to being held responsible for their statements,” they wrote.
Citing U.S. Supreme Court rulings in cases Branti v. Finkel and Elrod v. Burns, they argued that, “as the leader of the Nation, the President occupies a position of unique power. And the Supreme Court has made clear that the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests.”
The House brief alleges that Trump incited a mob that breached the U.S. Capitol on Jan. 6 by sowing doubt about the integrity of the 2020 presidential election.
Trump’s legal team denies the allegation and argues in a memo (pdf) that the trial is unconstitutional because Trump is no longer president. The team also argues that Trump exercised his First Amendment rights in calling into question the results of the election.
“After the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of COVID-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” the legal team wrote.
“Like all Americans, the 45th President is protected by the First Amendment,” they wrote. “Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation.”
“If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all,” they added.
Dershowitz’s sentiment that the reasoning featured in the impeachment brief is a threat to freedom of speech more broadly was echoed in a statement by Trump adviser Jason Miller, who said: “not only will President Trump be on trial next week. The First Amendment will be on trial next week because the Democrats aren’t going to stop with attacking President Trump, they want to go after the free speech and the rights of all Americans.”
Democrats face an uphill battle in the Senate in their pursuit of an impeachment conviction against Trump. Forty-five Republican senators voted in favor of a resolution calling the trial unconstitutional since Trump is now a private citizen. With the Senate split 50–50, the impeachment managers would have to convince 17 Republicans that the trial is constitutional and that Trump is guilty of inciting an insurrection.
More than two dozen Republican senators are calling for a meeting with President Joe Biden to discuss the new administration’s recent executive orders and regulatory actions, which they worry could have devastating effects on American families whose livelihood is tied to the domestic energy sector.
In a letter to Biden, 26 senators from states where economic growth and employment heavily rely on the oil and gas industry, wrote that they were “surprised” by the president’s actions that could put “hundreds of thousands of” energy jobs in their states at risk.
“Your actions will have grave consequences for our constituents, and taking these actions on your very first week as President, with no input from those of us who represent these hard-working Americans is counter to the desires of the American people who want practical, bipartisan solutions to our nation’s challenges, and who want policies that support working families,” the letter reads.
The senators, including Lisa Murkowski (R-Alaska), who chairs Senate’s energy committee, particularly took issue with the decision to scrap the $8 billion Keystone XL pipeline project, part of the Biden administration’s effort to address climate change. If built as planned, the 1,200-mile pipeline would have delivered more than 830,000 barrels of oil each day from Alberta, Canada, to Southeastern Nebraska.
President Donald Trump restarted the Keystone project almost 4 years ago via executive order. He said at the time that he expected the pipeline to create 28,000 construction jobs.
“When built with union labor by the men and women of the United Association, pipelines like Keystone XL remain the safest and most efficient modes of energy transportation in the world. Sadly, the Biden Administration has now put thousands of union workers out of work,” the senators wrote, citing the recent remark of Mark McManus, general president of the United Association of Union Plumbers and Pipefitters. “For the average American family, it means energy costs will go up and communities will no longer see the local investments that come with pipeline construction.”
The senators also voiced opposition to the suspension on oil and gas activity in Alaska’s Arctic National Wildlife Refuge (ANWR), one of the first actions Biden took as president. The 19 million-acre ANWR, estimated to contain some 11 billion barrels of oil, was reopened for drilling during the Trump administration to fund a multi-billion dollar tax cut program.
“At your inauguration, you pledged to represent all Americans, including those who live in our states,” the letter continues. “The best path to reach true unity is to work together to find solutions for them and for our environment. We stand ready to work with you and your nominees to meet the challenges our country faces, including working for a cleaner future, and protecting our hard working men and women.”
Below is the full text of the letter:
Dear President Biden:
As Senators who represent millions of Americans who work in our nation’s resource development sectors, we are requesting a meeting with you as soon as possible to discuss recent actions that your administration has taken targeting those industries. As our nation is confronted with the COVID-19 pandemic and resulting economic challenges, it is paramount that we rise above politics and focus on policies that invigorate jobs for hard working Americans. We appreciate your previous statements supporting middle class jobs and working families. We too share these goals, but they must not come at the overwhelming expense of our constituents. As Senators from states where the energy and resource development sectors have provided good-paying jobs for generations, including the building trades unions, we have been surprised by your immediate actions upon taking office that have targeted hundreds of thousands of these jobs in our states and which run counter to your stated goal of creating good-paying jobs and helping struggling American families.
Over the last decade, the United States became an energy superpower, realizing the potential of our vast resources to provide secure energy for the U.S. and our allies. This revolution in the production of our resources, like oil and natural gas, has provided stable, good-paying middle class jobs across the country. Our states have also seen growth of renewable energy resources and jobs, which we support under an all-of-the-above energy strategy. This has been recognized as an important bipartisan achievement, especially as it relates to jobs. However, your recent executive actions have put hundreds of thousands of jobs and billions of dollars in wages at risk. From revoking the permit for the Keystone XL pipeline, to halting leasing and permitting on federal lands and waters, including ANWR, and freezing continued energy development programs throughout our states, you’ve threatened middle-class jobs in the midst of an economy challenged by the pandemic, with no hope in the near future for these workers and their families. Industries which will create new “green jobs” that can replace the ones lost are still years away from maturing, and provide no immediate hope for our workers.
We are not the only ones who are deeply concerned about your Administration’s job-killing actions. As Mark McManus, the General President of the United Association of Union Plumbers and Pipefitters recently said about your Keystone XL decision, “When built with union labor by the men and women of the United Association, pipelines like Keystone XL remain the safest and most efficient modes of energy transportation in the world. Sadly, the Biden Administration has now put thousands of union workers out of work. For the average American family, it means energy costs will go up and communities will no longer see the local investments that come with pipeline construction.” Terry O’Sullivan, the General President of the Laborer’s International Union of North America also said that “there are no renewable energy jobs that come even close to replacing the wages and benefits the Keystone XL project would have provided. Killing good union jobs on day one with nothing to replace them, is not building back better.”
Your actions will have grave consequences for our constituents, and taking these actions on your very first week as President, with no input from those of us who represent these hard working Americans is counter to the desires of the American people who want practical, bipartisan solutions to our nation’s challenges, and who want policies that support working families.
Mr. President, we all watched your inauguration and took your words about unity and putting yourself in other people’s shoes to heart. We know you understand that the COVID-19 pandemic has forced millions of Americans to live paycheck to paycheck and to be worried about how they are going to pay rent and feed their families. Unfortunately, by targeting resource development, you have put thousands of good-paying jobs at risk, which is adding to the burden that our constituents are bearing right now and has the potential to further the divide between rural and urban America. The actions you’ve taken have the very real potential to devastate these hard working Americans and leave them and their families behind for decades to come.
At your inauguration, you pledged to represent all Americans, including those who live in our states. The best path to reach true unity is to work together to find solutions for them and for our environment. We stand ready to work with you and your nominees to meet the challenges our country faces, including working for a cleaner future, and protecting our hard working men and women. We hope that you will meet with us soon and commit to working together to address these important issues in a way that is best for all Americans.