Updated: Mar 6
No summary of democracy’s fragility can be found greater than the example of our recent history: four hundred prosperous years were ridiculed in a matter of hours, humiliated by one man’s tweetstorm. An unconfident nation and an international community watched the television biting their nails as misinformed “patriots” sought to save a fair election by following their wayward president’s orders and storming their own capitol building. As Congress approaches the possibility of post-term impeachment, pundits debate the president’s culpability in the assault. Some argue that discussions of storming the capitol had begun long before Trump had suggested anything of the sort, and his talk of fighting only referred to a figurative political resistance; others suggest that this is the culmination of years of incendiary rhetoric that has mobilized conservative reactionary groups and that Trump’s rhetorical wordplay only thinly veiled his true intentions.
Moving beyond the question of who lit the match, however, brings us to the more important question (with the less controversial language): who fanned the flames? Trump’s comments about “loving” the people storming the capitol as they trampled on American democracy and his disturbing sympathy for their agenda unified a nation in a collective horror as the violence progressed.
If he was a civilian, such talking points about a “stolen election” and the need to “fight” on the steps of the American capitol building would have been perfectly acceptable. An ordinary citizen’s words would likely fall flat on the general public’s ears without the authority of a Presidential office behind them, and they would not have to acknowledge the moral weight of their speech as unelected individuals speaking only to their own conscience instead of to the conscience of a constituency. The standards that exist now, primarily the one established in Brandenburg v. Ohio which considers whether speech incites lawless action, along with the high level of scrutiny that usually applies to free speech cases, would undoubtedly immunize President Trump from legal action. However, the United States should not hold the Leader of the Free World to such a low standard of conduct.
Ever since Roosevelt started broadcasting his Fireside Chats, technology has played a huge role in the mode of presidential communication and the significance of the bully pulpit. The bully pulpit is the informal media presence that the President has, and this power, although not explicated in the Constitution, is pivotal in the function of the President today. Moreover, that power increases each day as technology advances, further enabling each successive President to reach audiences never before conceived.
With that power, however, should come a commensurate recognition of moral obligation and legal enforcement. Relying on platforms like Twitter and Facebook to self-regulate and suspend accounts that they deem dangerous to the common good not only alienates power from the people by putting the discretion of justice in private hands but also creates a non-standardized system. Legal codification of permissible candidate speech would improve the rule of law as a core of constitutional and democratic governance, since restrictions would become uniform across platforms. Expectations of civic virtue which once restrained the actions of public officials no longer carry the same weight. Laws must directly curtail the freedom of a President to make blatantly untrue statements or ones that provoke dangerous groups. In some respects, such a limitation exists with the constitutional “high crimes and misdemeanors” specification for impeachment, since that makes impeachment more of a political process instead of a legal one subject to first amendment scrutiny like the Brandenburg test. As a result, a President can be tried solely on the basis that his “crimes and misdemeanors” are of grave significance and harm according to the Senate, and no criminal charges must necessarily follow.
However, such a broad interpretation of permissible justifications for impeachment only exists insofar as people in Congress respect it. One of the arguments Trump’s lawyers are considering involves a robust free speech defense. For all intents and purposes, the President should have no right to free speech. When serving in an official capacity, he is more than an individual. He is an officeholder. He is a representative of the people. While a system of prior restraint may go too far towards censorship of legitimate political ideas, lower scrutiny ought to be applied to the President’s speech, justified on the basis of his elevated platform.
Let it not be mistaken that this is a constitutional argument: nothing in the constitution would merit a different metric for presidential speech than a regular citizen’s speech. If anything, the fact that legislators are “privileged from arrest” according to Article I of the Constitution implies that the Framers had a belief far different from this argument about the freedom necessary for just deliberation. Instead, Congress should merely shift its paradigm: impeachment is not a legal trial. Impeachment is a political process of recall for the two Houses to make based on their perception of a President’s actions as good or bad.
At the end of the day, even Uncle Ben from Spider Man understood that such a change is required for justice when he said, “with great power comes great responsibility.” We must respect his wisdom and use the check of impeachment, one of the very few bulwarks against American executive tyranny, more aggressively to codify that responsibility and secure the common good for our nation.
Varun Mandgi is a critical writer and columnist for the Incandescent Review. He is a high school senior from Maggie L. Walker Governor’s School in Richmond, VA who specializes in philosophy and political theory. Contact him at email@example.com or comment on this piece with inquiries or recommendations.