Justice isn’t only about conviction — it’s about holding those responsible to account, doing the right thing when everyone is looking, and bringing the United States back to reality. On the eve of the impeachment trial, 144 constitutional scholars — including the co-founder and other members of the conservative Federalist Society legal group — have resoundingly rejected the ex-president’s defense claims that he can’t be convicted after he has left office and that his remarks that incited the Jan. 6 insurrection are protected speech under the First Amendment.
Case precedence provides several examples of impeachment after an individual has left office. In 1797, 10 years after the Constitution was written, the Senate conducted an impeachment trial after Sen. William Blount no longer held office. In 1876, the majority in the Senate voted that they had the jurisdictional authority to try Secretary of War William Belknap, a former Grant administration official, for impeachment after he left office amid a major scandal. To suggest that our Founding Fathers somehow thought it was OK for a president to commit illegal, contemptible high crimes and misdemeanors in the final weeks of holding office is laughable. And those claiming that Trump was out of office are misstating the facts: He was impeached Jan. 13.
As Dean Erwin Chemerinsky wrote in his opinion piece in the San Francisco Chronicle, the Supreme Court held in 1919 that speech could be punished as incitement if it posed a “clear and present danger” of harm. SCOTUS ruled again in 1969 that speech could be punished if it was likely to cause imminent illegal activity and if the speech was directed at causing imminent illegal activity.
If a president telling an enraged, armed mob that “you’ll never take back our country with weakness” and “if you don’t fight like hell you’re not going to have a country anymore” isn’t a clear and present danger, nothing is. If promising for two months beforehand in public remarks and tweets that the march to “Save America” will be “wild” wasn’t likely to cause imminent illegal activity or directed at causing imminent illegal activity, nothing is. If remaining silent as your followers use metal pipes, poles, fire extinguishers and more to storm the Capitol, murdering a U.S. Capitol Police officer and injuring 140 other officers, isn’t sending a clear signal that you are part of the coup, nothing is. If tweeting afterward, ‘These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously ripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!” isn’t claiming victory for that attempted coup, nothing is.
The political divide that has eroded the very foundation of our government won’t magically disappear if we just move on — that would encourage more attacks. Congress must do its duty to uphold the Constitution and seek truth and justice. We must do our jobs now to protect against future assaults on our democracy.
Jackie Speier, D-San Mateo, represents District 14 in the U.S. House of Representatives.