At the point where you're saying a President can't be impeached for speech that can't be criminally punished, for instance, if he said the time had come to put people in concentration camps, I have to wonder whether you understand that impeachment is a political remedy.
At that point, why not just say that impeachment is a bill of attainder?
Some have memorably said that if the electoral college were not in the constitution, it would be unconstitutional. That seems to be the argument here.
Also, if there were ever an absolutely radioactive political question that no court would touch, it would be whether the grounds for impeachment were legally permissible.
Finally, we have a lot of case law on when the government can fire people for their speech, and that seems a much better fit here. Trump's statements, as President, were within the scope of his employment.
Firing him for his speech would be fine under Garcetti.
So if, for instance, a police officer got on Facebook and said the time had come to invade the capitol and kill everyone in Congress, that's not incitement, but he's still gonna get fired.
The special irony here of course, is that this is an argument that Congress explicitly can't do something the Constitution says it can, shortly on the heels of many Republicans saying that Congress did not have to do something the constitution says it must: count certified votes.
Or maybe each member of Congress has the right to vote his conscience under the first amendment, since votes are speech, and any limitation on their right to vote to remove is unconstitutional?
It seems like if we're applying doctrine to weird new contexts, the sky is the limit.
The thing about Blackman's piece is that it recognizes that, right now, there is no case law that says Presidents can't be impeached for protected speech.
So he's advocating for a change in the law. But that change seems like horrible policy. So why is it a good idea?
Like, why would you want to severely limit an already almost impossible to get remedy in a system that already leans way too far in the direction of President as king?
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Trump's lawyers dismissed their case, saying they had reached a settlement with Brad Raffensperger. Not only was this a lie, say Raffensperger's lawyers, who SPECIFICALLY TOLD THEM there was no settlement, but you talked to our client without our consent!
I went through the transcript of the phone call, and I went through the OCGA, and I can honestly say that I don't identify a crime.
The closest Trump comes is solicitation to receive a thing of value for an official act, but he doesn't offer a concrete thing.
The vague threat of a crime might work if Raffensperger were an "officer of the court," like a probation officer, but here, I don't think he qualifies.
Remember that criminal laws are written by professional politicians, who create the broadest possible laws to address, for instance, possession of an imitation drug, and some of the narrowest when it comes to their own wheeling and dealing.
Oh man the Trump campaign has filed an emergency petition to the Supreme Court of Georgia and I'm already loving the excuse for them forgetting to pay the filing fee:
"There was just so much gosh darned evidence the computers must have clogged"
Ok, so the argument here is that Judge Russell in Fulton County isn't qualified to preside over their election challenge because she's an active judge who lives in Fulton County.
She hasn't issued any rulings yet, but they want an emergency order for a new judge.
This is not great. "Lots of stuff keeps going wrong with these filings and none of it is our fault, please help."
And then, it certainly sounds like they aren't even sure they've filed a motion for a different judge.
The Constitution specifically says that state legislatures are responsible for choosing how electors are chosen. Letting other states decide for them, or claim injury if they don't like their choice, would violate the Constitution.
And of course, it's not just standing here, but laches. Waiting until after the election to file these lawsuits means that tens of millions of people could lose their vote, in which they have a liberty interest, without notice or a hearing.
That also violates the Constitution.
And also, it just doesn't make sense to allow ordinary people to sue because one branch of government has usurped the power of another, without injury. We don't typically sue to vindicate other people's rights.
Conservatives understood this concept for emoluments.