Here’s a simple explanation against the argument that the impeachment hearing violates the former President’s First Amendment rights.
If a police officer says, in a speech, that he only arrests black people because they commit the most crimes, he may have a first amendment right to say it, but it would clearly violate his duties as a sworn officer.
If a doctor says, in a speech, that he won’t treat Jews because they killed Jesus Christ he may have a first amendment right to say it, but it would clearly violate his Hippocratic oath and licensure as a doctor.
If I say, in a speech, all women should obey the men in their lives because men know better (I would, of course, say this silently in the presence of my wife and daughter) I may have a first amendment right to say it, but it would clearly violate common sense.
Each example may be constitutionally protected and, more important, few people would pay attention to the point of the pronouncements, but they would be rightfully concerned about the context and position of the person making them. (Except mine, of course, my wife and daughter would just ignore me.)
The difference is a police officer, doctor, or any other person can hold and express anything they like when acting as private citizens if they act within the law. If they translate these protected speech statements into actions in their employment or position, there are legal consequences.
The President of the United States is never a private citizen while he holds the office. Everything he says, he says as the President and it implies infinitely more significance than statements from ordinary American citizens.
If the President enjoyed unfettered First Amendment rights, then he could announce an intention to fire nuclear weapons against the county of East Japeepee with no concern for the reaction of the East Japeepeeians.
If they launched a pre-emptive strike against us, it would be because they hate our freedom and our First Amendment rights.
Which leads us to the Impeachment trial. Getting past the raw emotions of what happened that day (as a former police officer I felt only rage for the attack on those officers and, frankly, I am in awe of their restraint. Some officers I know might have opened fire at such a threat) we need examine the President’s speech in the context of not just that moment but with the understanding of what led the crowd there in the first place.
A Lie
A bold faced fabrication intended to subvert the Constitution.
And more critically, a lie spread by the President of the United States that the election was stolen from him. And if one wants to argue the President of the United States can lie to the American public because he has a First Amendment right to do so, one risks the consequences.
Consequences that played out in the halls of Congress.
Or if one argues that it is not a lie if the President believed it to be true, somehow delusional does not seem a good characteristic for the President of the United States.
The speech by the President on January 6th wasn’t the reason the mob attacked the Capitol; it was merely the starter’s gun signaling the beginning. Mr. Trump lit the fuse on the artillery he had primed, loaded, and aimed at our country.
One last point, and this is telling, from the moment the mob stormed the Capitol until the President made any effort to dissuade the mob, he did nothing for hours. Hours while US Capitol Police officers were being attacked, assaulted, and murdered by a mob he unleashed.
Even if one accepts the premise that the President never intended his speech to spark an attack, he did nothing to mitigate it once it began. Actions, or in this case inactions, speak volumes. If he never intended them to attack Congress, why did he do nothing?
One can draw a reasonable inference from the President’s failure to take swift and bold action.
Can you imagine what would have happened had not the US Capitol Police and the Secret Service acted as quickly as they did to protect the Vice President and the members of Congress? There is no doubt in my mind that the frenzied crowd—driven by weeks of the President’s own exhortations that the Vice President could change the results of the election, had they seized Mr. Pence (after the Secret Service ran out of ammunition killing who knows how many)—would have executed the Vice President and anyone else the President sent them after.
Now there’s a legacy of Making America Great Again one could point to with pride.
As part optimist, I believe there is a chance that enough Senators will do what’s right as opposed to what is politically expedient. As part realist, I have little reason to believe it will happen.
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