Rand Paul’s Confused Attack on the Flawed Incitement Charge against Trump

S enator Rand Paul may be right that the impeachment trial of former president Donald Trump will divide the country, although the country is already quite divided. He is certainly wrong that the trial, and particularly the impeachment article charging Trump with “incitement to insurrection,” is an unconstitutional “criminalization of speech.” The senator either does not understand what the First Amendment protects or what it means to “criminalize” something, or both.

Let’s begin with the basics. What is scheduled to start in earnest tomorrow is not a criminal trial. As I outline in a column at Fox News today, it is a trial conducted by the Senate, which in constitutional terms is an Article I political legislative body, not an Article III nonpolitical judicial court. Nothing is being criminalized. Former President Trump has not been charged with a crime. An impeachment trial is a political process. At stake is a person’s authority to hold an office of public trust, which is a privilege, not a right. Trump’s liberty is not at stake. If found guilty, he will not stand convicted of a crime, and he will not be subject to a fine.

I’ve repeatedly explained that the evidence against the former president would not suffice to support a criminal charge of incitement (which, under section 373 of the federal penal code, is called “solicitation to commit a crime of violence”). But if we assume for discussion’s sake that Trump were someday to be charged by the Justice Department with that felony, the fact that he had been subjected to an impeachment trial would give him no double-jeopardy protection from further prosecution.

That is because impeachment does not put Trump in criminal jeopardy. The Constitution is explicit (in Article I, Section 3) that even if a person is subjected to an impeachment trial, he “shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” The best example of this is President Ford’s 1974 pardon of President Nixon. Even though the latter had resigned while on the verge of being impeached after the House Judiciary Committee approved articles of impeachment, those congressional proceedings were not a criminalization of Nixon’s alleged statements and other conduct. Ford issued the pardon because Nixon was potentially subject to prosecution for any potential crimes arising out of the Watergate scandal.

If former President Trump were being prosecuted in court on a charge of criminal incitement, he might have the opportunity to litigate whether the charge violated his right to engage in political speech. I say might rather than would because I don’t think it would ever come to that. Trump’s statements fall patently short of incitement under federal law, which requires an unambiguous call to violence that is imminent and probable. Because there is manifestly no incitement crime, a court would not need to reach the constitutional question of whether he had been engaged in protected political speech.

Two additional points on that.

If Trump had made statements that actually satisfied the elements of a criminal incitement offense, he would not have engaged in protected political speech. At the time the First Amendment was adopted, “the freedom of speech” that it guaranteed against abridgment had a number of well-known exceptions. These, as the Supreme Court explained in Chaplinsky v. New Hampshire (1942), included “insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Not to belabor the point, but because Trump did not use such language, we are not in that situation.

The second point goes to my continuing quarrel with the House’s ill-conceived impeachment article.

In the colloquial sense, Trump may have “incited” the rioters in the sense that he gave a fiery speech insisting that the election had been stolen and encouraged his supporters to take their protest to the Capitol, where violence broke out (a significant amount of it before Trump was done speaking). Nevertheless, he did not commit incitement in the legal sense because he did not call for violence and, in fact, said on a few occasions that he wanted peaceful protest.

In light of this, it was the House that was asking for trouble by framing the impeachment case as incitement. Since the conduct would not qualify as incitement in a legal sense, it just confuses matters to invoke incitement. It is true that the criminal offense of incitement need not be proved in order to establish an impeachable offense (because conduct need not qualify as a penal crime to be impeachable “high crimes and misdemeanors”). Nevertheless, it is a boon to the Trump defense that what their House prosecutors label “incitement” would be thrown out of court if Justice Department prosecutors tried to charge it.

All that said, the fact that Trump had a free-speech right to claim, however baselessly, that the election had been stolen does not mean that what he said was appropriate, or that his words may not be used as evidence.

Let’s leave incitement out of it.

As president, Trump had the obligation to preserve, protect and defend the Constitution. The proceeding that was taking place at the Capitol on January 6, and that Trump explicitly tried to derail (albeit not forcibly), was a solemn, constitutionally mandated bicameral session to count the states’ electoral votes. Trump was encouraging the vice president and federal lawmakers to oppose that counting, but they had no authority to do such a thing. Though the media keeps calling the January 6 session “Congress’s certification” of the states’ electoral votes, that is inaccurate. The states do the certifying. Each state has sovereign power over its own electoral votes. The federal government’s only role on January 6 was to count those votes. The Constitution gives the vice president and Congress no power to approve the votes, or otherwise to act as a check on the states. Once each state timely certifies its electoral votes (as all states had prior to January 6), that certification is final under the Constitution and statutory law.

Therefore, what Trump was asking the vice president and congressional Republicans to do was unconstitutional. He urged people to protest at the Capitol in order to pressure these federal officials to ignore their constitutional duty. Even if we stipulate that Trump did not want the protest to turn violent, he was still trying to achieve an unconstitutional objective, in violation of his duties as president to preserve the Constitution and execute the laws faithfully. That would be an impeachable offense, regardless of whether Trump had incited a mob.

There is no First Amendment protection against the use of one’s words as evidence of misconduct. The problem here is that the House has charged Trump with incitement, when it should instead have charged him with betraying his oath of office by pressuring the vice president and lawmakers to violate their constitutional obligations. If that had been the charge, then any First Amendment claim made by the Trump defense team would miss the point. No one is denying that Trump had a First Amendment right to say what he said. But if what he said is evidence of actionable misconduct, the First Amendment does not forbid the introduction of those words at trial to prove the misconduct.

Indeed, in many if not most criminal trials, statements by the accused are admitted as evidence of the crime charged. The words themselves are not the misconduct; they are evidence of the misconduct. Let’s say a mafia don tells a button-man, “kill that guy,” and then he is charged with murder conspiracy. At trial, the prosecutors, of course, introduce the statement “kill that guy.” By doing so, the prosecutors are not “criminalizing speech”; they are offering evidence as part of their proof of the murder conspiracy charge. The crime is murder conspiracy, not the utterance of the words.

If the impeachment trial bogs down in the Senate this week, it will be because of House Democrats’ partisan haste in rushing an impeachment through in a few hours, with no hearings or deliberation. With careful bipartisan collaboration, they could have gotten more Republican support for impeachment articles that focused on (1) the former president’s effort to prevent Congress from fulfilling its constitutional duty to count the states’ electoral votes and (2) the president’s dereliction of duty in failing, as commander in chief, to respond to a forcible attack on the seat of government.

Senator Paul is wrong on the constitutional principles. But there is no doubt that, by foolishly invoking incitement, Democrats have succeeded only in helping the Trump defense team and giving Senate Republicans an additional rationale to vote for acquittal.