The impeachment of Donald Trump for his calling upon supporters to march "peacefully and patriotically" to the Capitol is an affront to the First Amendment.
I say that as one who didn't support Trump in 2020 and who opined immediately after the 2020 election that the GOP should move forward promoting Trumpism, but without Trump.
But this story goes well beyond whether one worships or loathes the 45th president. This is about the specter of criminalizing protected speech that is uttered by a despised political opponent.
Those promoting impeachment never cite the exact words that constitute the advocating of insurrection. They claim, first and foremost, that Trump lied about the extent of election fraud.
This, in and of itself, is a subjective, debatable issue. But even if it was proved untrue, are we now going to create a standard that falsehoods uttered by politicians make the speaker subject to prosecution?
If so, I imagine we can be assembling grand juries to review the lies of President Obama (You can keep your health care) or his adviser, Jonathan Gruber, who admitted the Obama team deliberately misled the American people that Obamacare was not a tax.
Or Obama stooge, Ben Rhodes. who boasted how he fed lies to naive, fawning press crews to do the administration's bidding on the horrific Iran nuclear deal.
Lying by politicians is deplorable, and must be factored into the ultimate decisions made by the voters on Election Day, but it is not now, nor has it ever been, criminal. (The statutory exception is when a lie is made to the FBI or under oath before Congress or a court of law. See: Bill Clinton.)
Joe Biden lied when he said he had no knowledge of his son Hunter's overseas business dealings. But, unless it's said under oath, it's not impeachable (though the underlying activity conceivably could be.)
If, at his January 6th press event, Trump had called upon his minions to storm the Capitol, burst through the doors and take over the proceedings, it certainly would have been an impeachable offense. But it's remarkable how many pundits — even conservative ones — believe he really said that, when the transcript proves he emphatically did not.
Ah, but it's his motive that counts, as much as his actual words, say the impeachment mob. His followers "knew" what he meant when he said "peacefully" assemble. They know he really meant "storm the building, assault police and assault members of Congress."
How absurd! How utterly dangerous! How disgustingly contrary to the very nature of the First Amendment! Stupid speech is protected by the First Amendment. So is offensive speech. So is inaccurate speech.
When we start ignoring the actual words of a speaker and begin delving into his mind by attaching a subjective interpretation to the "real meaning" of those words, we've hit an Orwellian, China Communist Party rock bottom.
In first year law school, students are taught the legal concept of causation. A person assembling others at a certain location cannot be held liable for the damage caused by a third party who detonates a bomb if the organizer had no association with the rogue intervener.
Should Martin Luther King have been personally liable for organizing a perfectly legal protest march, if one of the protestors, on his own, decided to shoot a police officer? The answer is emphatically no.
And what of the hundreds of protests that sprung up across the nation at the urging of leaders of the Black Lives Matter (BLM) movement? They had every right to peacefully protest. Should the leaders of BLM be hauled off to jail if some of the protestors, on their own, decided to riot, pillage and loot local neighborhoods?
It's of course a different story when leaders of antifa specifically call upon their members to break windows, take over city blocks and attack police with frozen water bottles and Molotov cocktails.
Prosecutors must be able to show specific language whereby the accused is actually encouraging a credible, violent act. In Trump's case, it never happened.
It's not enough that you don't like him; that he is obnoxious; that he is a sore loser; that he is undignified, or even that he was at times untruthful.
If Trump doesn't enjoy a First Amendment right to call on supporters to peacefully assemble in front of Capitol Hill, then Chuck Schumer had no right to call upon his "P" hat army to protest outside the Supreme Court in the midst of the Brett Kavanagh hearings. (And he certainly would have no right to utter implied threats on the justices that they will "pay the price" if they vote the wrong way.)
Perhaps we should inject ourselves into Schumer's head and interpret his true, yet unsaid, motives that he really wanted the court's conservative bloc physically roughed up a bit.
Impeaching Trump on these specious insurgency claims will do much more than simply exact humiliation on a controversial president. It will create a new standard of criminalizing free speech by holding people liable, not for their actual words, but rather for what their enemies subjectively interpret those words were otherwise supposed to mean.
This month it will be Trump. Next time it could be you.
Steve Levy is President of Common Sense Strategies, a political consulting firm. He served as Suffolk County Executive, as a NYS Assemblyman, and host of "The Steve Levy Radio Show." He is the author of "Solutions to America's Problems" and "Bias in the Media." www.SteveLevy.info, Twitter @SteveLevyNY, firstname.lastname@example.org. Read Steve Levy's Reports — More Here.
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