By Tatyana Hopkins
While continuing the impeachment process for a president who has left office is unprecedented and carries a number of unknowns, precedent from previous impeachments indicate that the process may move forward, said Peter J. Smith, GW Law’s Arthur Selwyn Miller research professor and expert on the 25th Amendment and constitutional structure.
“There are competing views on this question, and we don’t know the answer for certain,” he said. “We haven’t previously had to confront the question of whether it’s permissible to try and seek to convict the president who incited an insurrection in the waning days of his presidency.”
Mr. Smith joined a panel of GW Law experts—that included professors Paul Schiff Berman, Laura A. Dickson and Catherine J. Ross— at a GW Law event, The Insurrection at the Capitol: A Discussion by Legal Scholars, to discuss the various legal implications of the Jan. 6 attack.
Moderated by GW Law’s Jeffrey Rosen, professor of law, the experts explored issues such as whether the Senate could hold an impeachment trial after Mr. Trump leaves office, the potential criminal charges he could face and the legality of social media sites banning him from their platforms.
When the group met Thursday afternoon, the House had voted 232-197 the previous day to impeach Mr. Trump on the single charge of inciting the attack on the Capitol that resulted in five deaths and a disruption of Congress.
While noting that some legal scholars have argued holding the next step of the impeachment process--a Senate trial to convict and potentially disqualify Mr. Trump from holding future office--would be unconstitutional, Mr. Smith reasoned that it would be illogical to conclude that a president could avoid conviction simply because he is no longer in office.
“It would seem strange to say that you could defeat the prohibition of holding future office just by resigning as quickly as you can when the writing is on the wall,” he said. “Yet, in the view of those who say the Senate can’t do it, the basic idea is that, well, once the president isn't in office, he simply can't be convicted anymore.”
He also noted that historic precedent gives way for the subsequent conviction of an impeached federal judicial and executive appointees who leave their posts and pointed out two examples that were written about recently in the Washington Post.
Ms. Ross, Fred C. Stevenson research professor and expert in the First Amendment and free speech, agreed with Mr. Smith’s analysis that the Senate could proceed with an impeachment trial against Mr. Trump even after President-Elect Joe Biden transitions to the office.
However, she said, the finding that Mr. Trump’s actions rose to the level of incitement, a form of speech not protected under the First Amendment, could be difficult to prove in the Senate and even in conventional criminal courts.
Ms. Ross said while courts have been “very reluctant” to find satisfaction of the high standard for inciting violence and insurrection set out in 1969 Supreme Court case Brandenburg v. Ohio, which overturned the conviction of a Ku Klux Klan leader, she believes there is a “strong likelihood that this case could satisfy even the “really difficult” criminal standard.
However, she noted that the Senate does not need to consider the traditionally high-bar criminal standard for purposes of removal and disqualification.
“The Senate could convict and even say, ‘We don't know if this will hold up in criminal court,’” Ms. Ross said. “I think the thing to be careful about there, is for the Senate to say clearly if they aren't sure it would meet the criminal standard, because we don't want this really, hopefully unique, situation to make bad law.”
Mr. Berman noted the insurrection also has led to other concerns about First Amendment issues, such as social media platforms restricting Mr. Trump’s accounts, with many citing fear of violence without such action.
He said while social media companies are not subject to First Amendment scrutiny because they are private actors and not agents of the government, there has been a growing debate about whether private actors that control communications channels should be seen as common carriers or as quasi state actors and therefore subject to the constitutional provision.
However, he said in the wake of threats of violence leading up Mr. Biden’s inauguration, the nation should be most concerned with protecting the rule of law and democracy.
“I actually think what the platforms have done is appropriate,” Mr. Berman said. “In the near term, we can have a broader conversation about civil liberties, platform power and whether these things should be more open in the future, but I think now is a crisis moment, and I think what they did was appropriate.”
However, Ms. Dickson, GW Law’s Oswald Symister Colclough research professor of law, said social media platforms and the government’s lack of protocol for identifying extremist behavior online threatens continued growth of domestic terrorism and national security overall.
“There are a lot of gaps when it comes to domestic terrorism that could run up against First Amendment problems,” she said. “There's clearly a failure in taking threats of domestic extremism seriously and coordinating information across the whole of government and… bringing threats [made] online into the threat calculus.”