Free Speech, Culpability and the Impeachment Trial of Former President Trump

Yesterday, the senate debated the constitutionality of impeaching someone who is no longer president and found the proceedings to be constitutional. Now, the trial will likely hinge upon a close reading of Trump’s public statements—and private actions—as the riot broke out on Jan. 6. Is he responsible for the violence that resulted in five deaths, including the murder of a Capitol Police Officer?

Political Science professor Susan Roberts shared her insight on this unique—and uniquely murky—impeachment trial.

The Democrats need 17 Republicans to vote to convict—and that sounds unlikely, at best. Is it worth going through with this? And what are the stakes of having a second impeachment end in a second exoneration?

The whole thing is a matter of political calculation versus personal conviction. And the political calculation goes both ways. The Republicans fear that if they vote for conviction, they'll lose their seats. They’ve seen what’s happened to [U.S. Senator] Liz Cheney. This deep concern demonstrates the pull of Donald Trump on the party. Even though he lost the presidential election, Republicans picked up seats in the U.S. House and made significant gains in state legislative seats.

Meanwhile, the Democrats are also accountable. When they go back to their districts, they will have to answer for their votes as well.

And even though the verdict may be pre-ordained the process is important. The fact that the trial happens is critical.

One interesting wrinkle: The articles of impeachment say President Trump bears “singular responsibility.” I think that raises the stakes quite a bit. The Democrats might have overstated their case with that phrase.

In the first impeachment, the Republicans controlled the Senate. This time, the Democrats have a slight edge. How different will the trial process be?

Impeachment 2.0, if you will, differs in several ways. First and foremost, the charges are easy to understand. This is not a complicated “obstruction of justice” charge, one that may be difficult for the public to understand. Second, the evidence is much more visual than verbal. No one in the country hasn’t seen at least a sliver of this. Third, the jurors were also the witnesses. Finally, the trial will move quickly unless the Democrats choose to subpoena Trump, and this seems highly unlikely.

Like you said, this trial will lean heavily on visceral, visual evidence. How might that affect the tone of this trial?

That the insurrection happened is self-evident. That Trump spoke to the horde is self-evident. If the defense argues that is just “Trump being Trump,” the proceedings will instantly become more divisive and volatile.

I think there are many people who think, “I've seen all of the tape,” or “I've seen what happened,” or “I couldn't take my eyes away.” I think there will be pieces of the video that people have not seen. And I think it will be a kind of a gut punch to all the Republicans to see it again.

Those people, those members, Democrats and Republicans, felt personally threatened. And it will be very hard to deny the impact of those videos. Shame is going to be a big part of this trial. Can Republicans re-live that day and deny culpability?

Some of Trump’s defense will center on his freedom of speech; that he’s allowed to say inflammatory things. How much weight does that bear?

It’s not as simple as yelling “fire” in a crowded theater. That is an easily recognizable and commonly used analogy, but that is not precisely what Justice Oliver Wendell Holmes really said. To be precise, he wrote in 1919 that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” There is such thing as free speech, but there's a line you can’t cross—and that line is deliberately causing harm. The question is: Did President Trump deliberately cause harm? I think that people need to tease out that this isn’t as simple as “fire in a crowded theater.”

Some of Roberts’ answers were adapted from her Feb. 8 appearance on the WFAE program, Charlotte Talks. The full episode is available here.