Impeachment scholars are wrong to intimidate lawyers of Donald Trump
On the eve of the second impeachment trial of former President Trump, more than 140 constitutional scholars have issued a public letter to his lawyers with the demand, in effect, that they not make arguments to the Senate regarding the First Amendment. This unreasonable new demand comes in the form of a claim that “any First Amendment defense” raised by the attorneys for Trump “would be legally frivolous.”
This threat is dangerous to our adversary system of justice and wrong as a matter of constitutional law. It is dangerous since the rules of professional responsibility prohibit an attorney from making frivolous arguments and carry disciplinary sanctions for anyone who does it. The letter purports to put these lawyers on notice that if they offer any kind of First Amendment defense, they subject themselves to potential discipline.
The argument is also wrong on its merits as a matter of constitutional law. However, the most dangerous aspect of the letter is that its goal is to chill the lawyers for Trump from making some important arguments on behalf of their client. The letter easily could have said that any First Amendment argument would be wrong, but instead it goes further and suggests that any such argument is prohibited in the code of professional responsibility for attorneys and could result in disciplinary sanctions.
As a professor of legal ethics for over two decades at Harvard Law School, I can assure the lawyers that these scholars are wrong. Arguments to the Senate based on the First Amendment are not frivolous. They should be offered vigorously and responsibly without fear of ethical ramifications. What is of dubious ethics is for these scholars to try to frighten lawyers away from making plausible arguments with a threat that they will face sanctions for it. I will support any attorney who makes responsible First Amendment arguments to the Senate and is disciplined.
As a constitutional lawyer who has litigated some of the most important First Amendment cases in the last half century, including those involving the Pentagon Papers, the erotic film “I Am Curious Yellow,” the Broadway production of “Hair,” the Chicago Seven protesters, analyst turned author Frank Snepp, adult film star Harry Reems, and the WikiLeaks case, I stand relatively confident the current Supreme Court would find the ill advised and justly condemnable speech by Trump last month to be fully protected under the Brandenburg principle, which distinguishes between advocacy and incitement to violence. Trump used provocative words, however, they included the plea for his listeners to protest “peacefully and patriotically.” Further, he never outright urged violence or lawlessness.
Compared to the speech in 1964 by Clarence Brandenburg, the neonazi klansman surrounded by armed men with crosses, the speech by Trump was pablum. It was typical of rousing speeches made over decades by radicals, suffragettes, union leaders, and many others in Washington. It was far less incendiary than the remarks of the Chicago Seven and other activists at the Democratic National Convention of 1968.
Not only would the Supreme Court of today conclude that the speech by Trump was protected advocacy, so would have previous Supreme Courts during the golden age of the First Amendment, which extended from the early 1960s to the start of the 21st century. Justices Oliver Holmes, Louis Brandeis, and Robert Jackson also would have likely found this speech to be well within those protections of the First Amendment.
The letter written by the scholars concedes that only some of its signers agree with its conclusion about the speech as outside the protections of the Supreme Court ruling in Brandenburg. So how could it be frivolous of lawyers for Trump to offer such arguments? The letter contends the First Amendment “simply does not apply” to an impeachment.
This claim flies clearly in the face of the First Amendment, which prohibits Congress from making any law abridging freedom of speech. The federal courts have interpreted that to include any state action, whether in the form of a law or other action. It would be one thing if this letter merely said such arguments were wrong. But to declare, as the letter does, the arguments would be frivolous is dangerous and unethical.
The letter also states that “no reasonable scholar or jurist” would make these First Amendment arguments. This sends a chilling message to all current and future law professors that if you desire to be considered “a reasonable scholar or jurist” by your colleagues and by university hiring committees, you will not dare make such constitutional arguments. I for one will continue to make them. I challenge any of the signers to debate me on whether my arguments are reasonable or frivolous.
These First Amendment issues should be presented to the Senate without fear of being branded frivolous and unreasonable as a scholar or jurist. To intimidate lawyers from making these important arguments by declaring them frivolous and unreasonable is a form of censorship that is obviously inconsistent with the spirit of our constitutional system.
Alan Dershowitz, professor emeritus at Harvard Law School, served on the legal team representing President Trump during the Senate impeachment trial. He is author of the recent book “Cancel Culture: The Latest Attack on Free Speech and Due Process” and his podcast “The Dershow” is also now available on Spotify and YouTube. You can find him on Twitter @AlanDersh.