Thread by @ASFleischman

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.

https://twitter.com/JoshMBlackman/status/1347467547709493248

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?