Senator 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.
Comments