Author Topic: Pelosi’s Third Impeachment Folly Clarice Feldman  (Read 709 times)

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Pelosi’s Third Impeachment Folly Clarice Feldman
« on: January 17, 2021, 03:00:43 pm »
January 17, 2021
Pelosi’s Third Impeachment Folly
By Clarice Feldman

Does the President have a right to free speech? Josh Blackman, a constitutional law professor writing on The Volokh Conspiracy, suggests he certainly does and that his speech on January 6 is a weak reed (as was Nancy Pelosi’s past impeachment folly) on which to gain a conviction in the Senate. (Remember an impeachment vote in the House is basically an indictment with no effect unless the Senate finds guilt after a trial.) Looking at the most analogous case, the impeachment of President Andrew Johnson, he finds plenty of reason for senators to vote against it.

    We think the Supreme Court's First Amendment caselaw establishes a baseline. And Senators ought to explain their departure from those precedents. A senator might comply with his constitutional oath, and act in good faith, if he determines that the full scope of First Amendment rights apply to the President under established Supreme Court caselaw. A senator might also comply with his constitutional oath, and act in good faith, if he were to decide otherwise. Our point is that First Amendment rights established by the courts establish a baseline from which departures ought to be explained. [snip]

    In his classic book about presidential impeachments, Grand Inquests, Chief Justice Rehnquist observed that, during times of conflict, "[p]rovisions in the Constitution for judicial independence, or provisions guaranteeing freedom of speech to the President as well as others, suddenly appear as obstacles to the accomplishment of the greater good." The Chief Justice was right.

    By necessity, this process has been hurried. Yet, Congress should not forget the lessons of history in the rush to convict President Trump. We know all too well that history has a way of repeating itself. During Johnson's impeachment trial, a House manager warned that Johnson's remarks were not "only talk." In a speech that could be used for Trump's Senate trial, Representative Benjamin Butler of Massachusetts said that "words may be, and sometimes are, things -- living, burning things that set a world on fire." In 1868, Butler's speech did not carry the day -- the House failed to convince enough Republican Senators that the President's speech was unprotected by the First Amendment.

    Democrats are poised to make a similar mistake today. The House managers seem to think they are more likely to secure a conviction by presenting an impeachment article -- a functional indictment -- which ignores the President's free speech rights. We think this approach may be a blunder. As the managers depart further from the traditional understanding of the First Amendment, the proceeding will more likely be seen as unfair. And, Republicans who see the proceeding as unfair may, at the margin, vote to acquit. They could defend their vote by finding that the managers chose the wrong legal standard. These Senators could justify their vote as a prudential choice to avoid making bad law and bad precedent.

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https://www.americanthinker.com/articles/2021/01/pelosis_third_impeachment_folly.html
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