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Bigger Than Trump
Having now reviewed everything I can find on what the President actually said at the protest in D.C., I can state with confidence that he did not cross a line into legally actionable speech. The bar set for classifying speech as criminal is pretty high, and the President did not even come close to meeting it.
Try to set aside what you think about President Trump. That’s a stretch goal for a lot of us, but let’s stretch: consider, for just a moment, that there might be an issue here that’s bigger than the President himself, and that could have repercussions that go far beyond January of 2021.
Those who call for the President’s removal from office are asking that punitive action be taken — in fact, that the most punitive action which can be taken, in the case of the Chief Executive, be taken — for his exercise of constitutionally protected speech.
Let that sink in. If the most powerful man in the United States can receive the highest punishment which Congress can mete out for the non-crime of speaking in a way that offends many people, then what protection does anyone have to speak freely? What does it mean to set a precedent that a sitting President can be removed from office for constitutionally protected speech?
During the Kavanaugh hearings, I argued that it was critical that the Senate confirm the nominee following the vague and unsubstantiated allegations made by Ms. Ford. A failure to do so would diminish the Senate’s authority by signaling that any future nominee could be derailed by nothing more than an unverifiable claim of past misbehavior.
Something even greater than that is at stake here. If we remove the sitting President, a man who received, barely two months ago, the support of more than seventy million Americans, that decision should be rooted in the most profound and solid Constitutional reasoning. Anything less elevates virtue signaling above the Constitution, and both endorses and enshrines the left’s view that the right not to be offended transcends freedom of speech and the rule of law.
If this disregard for law and the Constitution were coming only from the left, from people who already held neither law nor the Constitution in high esteem, I could almost overlook it as merely more of the unprincipled toxicity of the progressive movement. But some on the right are falling for this too — as evidenced by Ricochet’s own misguided rush-to-judgment piece a few days ago.
It’s time to put one’s feelings about the President aside, and to take a hard-headed look at the law and the Constitutional principles that are at stake. Everyone’s right to free expression is in the dock right now. That serves a left that has already embraced censorship and controlled speech. We on the right must do better.
Published in General
Agreed.
The Japanese Internment is where nations end up when they think there exists some good reason to suspend the constitutional rights they have.
Time and again, I return to Madam Himmelfarb:
The anti-liberty forces from both sides of the aisle are afoot. Truly despicable…every damn one of them.
I. Love. This.
Thank you.
From the archives, and probably instructive,
I remember the incident, certainly one of the most embarrassing “open mike” errors of my lifetime.
But I’m not sure what lesson I should draw from it, other than the obvious one that we should always assume a microphone is on. Care to elaborate?
When this happened, Reagan was accused of more than joking, “it could have caused a war,” his detractors said, and it was a sign of mental defects. In today’s climate, could even the Great Communicator himself avoid impeachment?
Hank, I agree with your post.
Hank and philo, I do not agree with this quote. The first sentence is wrong. The rest is OK.
The first sentence expresses free speech absolutism. Under this standard, even active, open, unambiguous incitement to murder and mayhem could not be prohibited. Conspiracy to commit heinous crime could not be prohibited.
I agree with Hank that the President did none of these things. But these things are possible, and sometimes occur. Thus, I find Himmelfarb’s position to be incorrect and untenable.
More here. Or just get the book.
Jerry, that occurred to me as well, but I let it pass for the same reason I usually do: because there is a nuanced meaning to “free speech” that I think most thoughtful people intend when they use the phrase. That is, they understand that “free speech” means “the freedom to express any idea, belief, value, or concept.”
I don’t think anyone, Ms. Himmelfarb included, believes that “free speech” includes the right to, say, lie while making a loan application, or after swearing an oath in court, without consequence, though a strictly literal interpretation would seem to mean that.
Occasionally I’m sufficiently pedantic to qualify what I mean by “free speech,” but usually I figure people grasp the intended meaning.
Trump was the guardrail that prevented the drunk driver from crashing into your front lawn.
The guard rail has been removed.
Let that sink in, “conservatives.”
A favorite quote from Archbishop Chaput:
Thank you, Scott. I’m afraid you’ll have to summarize your point for me if you want me to get it.
If I may, I’d like to borrow from @philo’s excellent earlier post, and reproduce here what blogger Ann Althouse determined to be the most arguable “pushing the envelope” comments by Trump in his speech. You be the judge:
There has been a school of thought, I forget the source right now, that Reagan’s “slip” was not an accident. It was calculated. Maybe it was in Steve Hayward’s biography.
This all comes down to the fact that Trump has been lying about the election being stolen for the past two months. This is why character matters and he doesn’t have any. Pray for our country.
Reminds me of another quote.
“I expect to die in bed, my successor will die in prison and his successor will die a martyr in the public square. His successor will pick up the shards of a ruined society and slowly help rebuild civilization, as the Church has done so often in human history.”
-the late Cardinal George of the Catholic Archdiocese of Chicago
Define “lying.” Are you in the group that mistakenly believes it’s just “saying something that’s wrong”?
I don’t think Trump intended to incite a riot, but I do believe his conduct is impeachable, and doing that would pose no threat to freedom of speech. I don’t really support it, only because he has such a short time left in office.
A president does not have to commit an actual crime to be guilty of high crimes and misdemeanors. That is an ancient term of art that encompasses a broad range of misconduct by officials, who have special oaths and obligations beyond those of non-office holding citizens.
In this case, the President attempted to use a mass gathering to intimidate the VP and Congress into illegally keeping him in power, something to they could not lawfully do. And that’s not even a close legal question. That’s bad enough. That alone is a breach of public trust, a dangerous disregard for the rule of law that ought to disqualify him from office.
If you add in what did happen, if you consider the recklessness made clear by what actually transpired, it only enhances the case. He misled people to the point they were willing to commit crimes on his behalf, to risk their own lives, and jeopardize the lives of others, and sure enough people did die. Died because of his absurd and shameful refusal to give up power. If he had conceded when his legal options were exhausted, those people would be alive today.
If that’s not impeachable, God help us.
Yes, and it’s your last comment above that should tip the balance seriously. I don’t have a problem with a reasonable discussion about whether his conduct is impeachable, but it’s theoretical and essentially moot because Jan. 20 is looming. I’ve said enough here about what I think of the motivations of those pushing for impeachment, so that’s enough.
Words matter too, and “lie” is an awfully heavy one.
I happen to believe that the election was stolen, in a figurative sense, by months of lying and censorship. But more, I think there’s a non-trivial chance that the election actually was stolen, literally, by plain old electoral fraud.
If I were confident about that, I’d make the claim more strongly. I think the President actually believes it, as do tens of millions of normal Americans. He could be right; I’m not sure.
But I’m not comfortable saying that the President is “lying” when he claims that the election was stolen. I’m not even confident claiming that he’s mistaken.
Your confidence is unwarranted, because you, like everyone else, are ignorant of the facts. The difference between you and the President in this regard is that the two of you are overconfident in different directions. I doubt that either of you is lying.
There is abundant evidence that the election was stolen. Your not acknowledging that does not change the evidence.
Do you remember that time when the crowd of Democrats interrupted the hearings? Do you remember all the media calling it an insurrection? All the Dems politicians calling it insurrection? Do remember people calling it domestic terrorism and talking about lifetime bans on air travel and social media for participants and those that riled them up?
I suppose that, technically, what’s impeachable is what Congress concludes is impeachable. However, I don’t see how impeaching a President for expressing an opinion which is (1) not demonstrably false, (2) shared by tens or perhaps scores of millions of Americans, and (3) legal and constitutionally protected speech can not have a chilling effect on freedom of expression.
I would say it like this:
“In this case, the President attempted to use a peaceful gathering to persuade the VP and Congress into exercising its authority under 3 U.S.C. §15 to reject electoral votes it deems tainted by fraud, and to encourage the states to review their ballots and confirm or correct their slates of electors. While it was likely a hopeless effort, it was within his right to make it and something he might honesty have hoped would occur.”
I might say it like this:
“If you consider what did happen, you can see that the consequence of the states engaging in such electoral carelessness and exhibiting such disregard for the integrity of the election led, ultimately, to a situation in which a President and his supporters felt that the only hope of legal redress lay in gathering to petition the government to intercede at the last possible moment such intercession could occur. It was inevitable that, with so much at stake, passions would be high; regrettably, some people acted illegally, with tragic consequences.”
Oh, it’s impeachable. You can impeach a ham sandwich. But I don’t think it in any way warrants impeachment.
Wow. We are in loony-land. I am amazed.
Or maybe he was the lightning rod that prevented a direct strike on your home.
People died because
People have been dying since March because our governors seize powers beyond their authority to rule us in ways beyond their ability. Give me a break on Mr Trump making a speech.
If there was such evidence, then in at least one of the 60 lawsuits, somebody would have introduced evidence of a stolen election. They did not. Over 90 judges and justices ruled against Trump.
I don’t remember the Democrats breaking into the Senate Chambers and sitting at the dais. I don’t remember the Democrats rushing the House Chamber, breaking windows and stopped only when facing drawn guns. I don’t remember the Democrats trashing Mitch McConnell’s office. Please provide me a link to those pictures.
The Democrats during Kavanaugh were bad, but they all went through the metal detectors and did not bring guns into the Capitol complex. The mob who breached the Capitol on January 6, 2021 were far, far worse.
December 6, 1941, September 11, 2001 and January 6, 2021 will all be days that will live in infamy. After Pearl Harbor, my father enlisted and placed his body into the path of the enemy. After 9/11, I swore “never again.” After the Trump Riot, I again swore “never again.”
It is impeachable. If Trump is not removed via the 25th Amendment, and if Trump does not resign. Not only is it is impeachable, Trump should forever be disqualified from holding any position of honor and profit in our country forever.
An abuse of power is per se impeachable.