House impeachment case is great politics but bad constitutional law

House impeachment case is great politics but bad constitutional law
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House impeachment managers spent the first full day for the Senate trial laying out the timeline that led to the attack on the Capitol. They showed videos, tweets, and other documents. It made for great politics, but bad constitutional law. They focused on claims from Donald Trump, from the night of the election to the day he left office, that the election was unfair and that he won it. The managers intended this to bolster their case, but proving that his statements were false does not strengthen an argument that such remarks are not protected by the First Amendment.

The Supreme Court has held that the First Amendment does not discern between true and false statements. The false claim that the earth is flat is as protected as the clear evidence that the earth is round. A mendacious canard that the Holocaust did not occur is as protected as the fact that six million Jews were murdered for it. So the false claim that the election was stolen is as protected as the real claim that Joe Biden is the president. The opinion of Trump, even if based on nothing more than wishful thinking, is protected by constitutional law. The Supreme Court has held that there is no such thing as a false opinion under the First Amendment.

Representative Jamie Raskin, my former law student who is also a former professor of constitutional law, understands this. So why is he spending so much time trying to establish that Trump made false claims about the election? There are two possible reasons. The first is that it is all political theater and the videos of the riot shown to those members of the Senate sitting in judgment and to the Americans watching at home are effective to undermine the credibility of Trump. This would mean the trial is more about persuading future voters than persuading the jurors.


The second reason could be that the House impeachment managers are trying to set a trap for the defense team of Trump. By focusing so heavily on his false claims, they will hope to force his lawyers to defend his ideas on the election. If his lawyers fall into this trap, it may be a blunder. If the trial turns into a debate over the election results, Trump will lose support from several members who think that he did not commit an impeachable offense but who also know that the election was not stolen.

One reason I decided not to appear as counsel to the former president in this case is precisely because I was afraid I would get drawn into a public discussion of the validity of the election. I believe the election in general was fair, and I could not credibly argue the opposite. I suspect lawyers of Trump feel the same discomfort, but they cannot voice their own views if directed not to do so by their own client. But I am still free to defend his remarks in public on the grounds of constitutional law alone.

Another tactic used by the House managers was to refer to Trump as the commander in chief. This is a false and dangerous characterization of the constitutional role with the president. The president is not commander in chief of the United States. He is only commander in chief with the armed forces. In totalitarian countries, a president is the commander in chief of the people. Dictators wear military uniforms and tell their citizens what to do and what not to do. However, our presidents are civilians who have no kind of authority to demand obedience from other civilians.

The House managers made this totalitarian argument in order to mislead members of the Senate into the belief that those who trashed the Capitol were acting under orders from the president. However, nothing is further from the truth. Just some who listened to the remarks at the White House marched to the Capitol. Many others left and went home. Moreover, only some of those who went to the Capitol broke in and committed violence. So if any of them believed they were following orders from the president, then they had no basis in fact or constitutional law to do so.

All the statements from Trump raised by the House managers, from the night of the election to the day he left office, were protected under the First Amendment. Not a single one of those violated the Supreme Court criteria for incitement, nor was Trump commander in chief of the people who committed crimes at the Capitol. They were individual citizens who can be held accountable for their actions. My former law student Raskin may deserve a Tony for his great show. But he gets a low grade from his former law professor for his flawed constitutional argument.

Alan Dershowitz, professor emeritus for Harvard Law School, served on the legal team representing President Trump for the first 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 will find him on Twitter @AlanDersh.