Politics, free speech focus of second Trump impeachment trial

February 12, 2021
In The News

The second impeachment trial of Donald Trump will ask whether his Jan. 6 speech — and previous tweets and speeches — incited the storming of the Capitol on Jan. 6, said four of the Valley's political observers.

There is much more to this impeachment than a question about free speech, said political science professor Robert Speel, Penn State, The Behrend College. A hot political battle is brewing this week in a divided Senate between Republicans and Democrats, the "jurors" in the impeachment trial, he said.

The divide exists in the U.S. House as well.


On Jan. 13, Republicans in the U.S. House voted overwhelmingly — including Valley Rep. Fred Keller, R-12, Kreamer, and Dan Meuser, R-9, Dallas — not to impeach Trump. Only 10 Republican House members voted with Democrats, who see the former president's words as responsible for the riot, that he should be held accountable, and is deserving of some kind of official reprimand.

The overall vote was 232-197 to impeach. Among the 10 Republicans crossing party lines was Liz Cheney, the third highest-ranking party member in the House. Cheney was subsequently censured by her state party, in Wyoming, for voting to impeach Trump.

"Democratic Senators are likely to vote unanimously to convict," Speel said. "From their perspective, Trump lied to his supporters for two months about the election results, made numerous attempts to get election officials and judges to overturn legal election results, and then encouraged and inspired a mob to attack the Capitol to stop the counting of electoral votes."

Republican Senators will be torn, Speel said, "as some of them privately or publicly agree with the Democratic assessments of Trump's actions, but most Republican voters still seem to disagree or object to any punishment for Trump. Republican Senators therefore fear the scorn in their home states from Republican voters, officials and activists, scorn that could result in a primary challenge in a future election."

At least a few Republican Senators also want to gain support among their party's base for a presidential run in 2024, including Ted Cruz, of Texas, and Josh Hawley, of Missouri, Speel said, perhaps without fully understanding that if Trump is not convicted, he may run again in 2024 and block the ambitions of all those Senate Republicans. 

“In my view,” said U.S. Sen. Pat Toomey, a Pennsylvania Republican, “a Senate trial for a president who was duly impeached by the House is constitutionally permissible, even after the president has left office. I will do my job as a juror and listen to the arguments of both the House managers and President Trump’s lawyers before making a decision on whether or not to convict.” 

Natalie C. Adams, a spokesperson for U.S. Sen. Bob Casey, Pa.-D, said, “Senator Casey will listen to the evidence and then vote accordingly.”

As far as the parties as a whole, Speel said, Democrats will be seeking to spotlight the accusations of Trump's crimes and abuses of office to the extent possible to try to prevent any potential resurgence by Trump for another campaign in 2024.

"They also will be trying to embarrass Republicans who vote not to convict Trump for inciting an insurrection at the center of American government," he said. "Republicans will be claiming that Trump is 'old news' after being out of office for almost a month and that Democrats should be focusing on current problems.

"These Republican claims will be an attempt to divert attention from Trump's actions in order to appease the Republican party base in home states."

Nick Clark, Susquehanna University professor of political science, said he’s unsure what sort of long-term implications are at stake.

The Republicans are in the middle of a fight over what will define the party: Allegiance to the former president or a break with him in favor of a stronger commitment to more traditional conservative principles and policies, Clark said.

The political calculations are clear, Clark added. "Both progressives and centrists on the left want to see Congress take action on this. On the right, the Republicans are stuck between a not insignificant and growing segment of their party that want to move on past Trump and a still sizable number devoted to him, who believe the election was stolen, and that Republicans need to fight for him instead of against him."

Clark doesn't think this battle will be settled in the next month.

"It will stretch into the 2024 presidential race, even if Trump does not run," he said.

The trial: fighting over words

“What the federal statute about incitement says is that inciting a riot is illegal,” said Stanley Brand, Penn State Distinguished Fellow in Law and Government, a former council and chief litigator for U.S. House of Representatives (1976-1983). “However, you have to have two things: You have to show that there was an intent to incite or to encourage or produce imminent lawless action.”

There is a fine line between blowing off steam and expressing views, he said, and actually encouraging people to do violence. 

It would be tough to prove in a court of law, Brand said. “But this is happening in Congress.” 

Did Trump cross the line in inciting a riot? 

It has to be action that is “likely to provoke a crowd to violence,”  Brand said. “That is what the standard is. This is not a normal, run-of-the mill case. The managers will argue that all of this has to be placed in context with other statements the president made at other times, which seemed to encourage people toward violence. When he told people at a rally to ‘beat those people up. I’ll pay the legal fees.’ The question is, is that admissible in this case? It will all be decided by the Senate.”

Those are the technical issues before them.


High bar

The Supreme Court has created a high bar for punishing speech that incites violence, added Bucknell professor of political science Scott Meinke.

“That standard is tough to meet, and it provides very broad protections for speech,” he said.

If Donald Trump were criminally prosecuted for his Jan. 6 speech, Meinke said, the case would be a challenging one for prosecutors. 

“However, impeachment and removal does not require proving a crime,” he said. “Presidents can be impeached and removed for wrongdoing that seriously damages the political system. In this case, the article of impeachment alleges a pattern of serious falsehoods over many weeks that ultimately led to the Capitol invasion.”

The case at the Senate trial will focus on a pattern of conduct and not just on whether the words of the Jan. 6 speech meet the criminal standard, Meinke said. 

There are no rules for whether the U.S. Senate can convict an impeached president of high crimes and misdemeanors for a speech, and there is no definition of “high crimes and misdemeanors” in federal law or in the U.S. Constitution, Speel said.

At the time the Constitution was written, Speel said, the term high crimes and misdemeanors was used to refer to abuse of government power. Trump’s false claims that the election was stolen, extensive efforts to overturn election results and calling on supporters to march on the Capitol and fight against the certification of Biden as president all seem to fit within a definition of abuse of government power, he said.

“The free speech claims of Trump’s lawyers are more appropriate for a criminal trial in court,” Speel said, “though it’s possible that Republican senators will latch on to those claims as an excuse not to convict Trump. The U.S. Supreme Court has always ruled that while free speech protections take priority over many other government interests, such protections are not absolute when they may endanger others or society.”

The arguments likely to be made by Trump's lawyers about free speech and Trump no longer being in office are weak, Speel believes, but Republican Senators are likely to latch on to those anyhow as public explanations for any votes not to convict.

"The problem with claiming that presidents no longer in office can't be convicted is that it would provide a blank check for future presidents to abuse their office to their heart's content during their last month in office if there was never any penalty for it," he said.  

Why now? 

Since Trump is out of office, why hold this impeachment at all?

This has been the subject of tremendous scholarly debate, Brand said. 

There is the argument that impeachment here only applies to sitting presidents, Brand said. “And that there is no basis for implying that it extends. Since the remedy is removal from office, he’s out of office. So there is no remedy to be had,” he said.

Another part of the debate centers around disqualification from holding future office in the United States.

Brand said the argument by people backing the trial is that the framers intended for the provision to allow punishment for someone who was no longer in office. 

“I’m not sure about that,” he said. “The link to the removal seems to be part of the power to disqualify. And if you are not in office anymore I don’t know if you can exercise that power.” 

The House pressed forward with impeachment for at least two reasons, Meinke said.

“It is the constitutional mechanism available to Congress for checking presidential wrongdoing, and Democrats and a small portion of congressional Republicans see this as a way to draw a line in response to an exceptional threat to the system,” he said.

More concretely, conviction in the Senate by a two-thirds vote would then allow the Senate to bar Trump by majority vote from holding office in the future.   

Many congressional Republicans, Meinke said, are arguing that a Senate conviction is not constitutionally possible for an official who has left office, and the Constitution’s text is not entirely clear on the point.  But the constitutional option to prevent future office holding is one of several reasons to think that a conviction vote remains valid after the president’s term has ended.

Part of the effort here is also to set a precedent to try to convince future presidents never again to try to overturn the clear outcome of a fair election, Speel said.

“Trump’s second impeachment may achieve part of that goal. But if the Senate does not convict him, the example it sets for future presidents is that as long as their own party continues to support them, they may get away with anything,” he said.