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HAMMER: There Is One Terrific Impeachment Defense That The White House Is Not Making
WASHINGTON, DC - NOVEMBER 20: U.S. President Donald Trump speaks to members of the media before boarding Marine One on the South Lawn of the White House on November 20, 2019 in Washington, DC.
Chen Mengtong/China News Service/VCG via Getty Images

I have been arguing for awhile now that the White House, congressional Republicans, and Trump-friendly punditocracy alike ought to alter their predominant impeachment defense narrative. The “no quid pro quo” narrative amounts to tendentious semantic debate: Its ability to persuade is largely cabined, in Rorschach test-like fashion, to the universe of voters already predisposed toward Trump sympathy. It is preferable to make a substantive argument that attaching corruption-related strings to the doling out of politically unpopular U.S. taxpayer-funded foreign aid simply does not rise to an “abuse or violation of some public trust,” as Alexander Hamilton’s defined the Constitution’s “high crimes and misdemeanors” impeachment criterion in The Federalist No. 65.

But it is possible that there is an even more straightforward and politically palatable impeachment defense that does not necessarily entail accepting a certain view of foreign policy or foreign aid. The defense revolves around the nexus of political quid pro quos and constitutionally protected free speech.

As Texans will certainly remember, then-Governor Rick Perry was indicted in 2014 by a grand jury for abusing his official capacity when he threatened to withhold $7.5 million in funding for the Travis County district attorney’s Public Integrity Unit unless the district attorney, who had previously been convicted of drunk driving and subsequently incarcerated, resigned.

Sounds a lot like a quid pro quo, no?

At the time, the special prosecutor’s operative legal theory required that the First Amendment not protect a governmental actor’s right to threaten taking a lawful action in order to attain a preferred political outcome. If the special prosecutor were wrong, then Governor Perry’s attempted quid pro quo would hardly be illegal at all — it would actually be constitutionally protected speech.

At the time, powerful and ideologically diverse group of attorneys argued that the special prosecutor sought to criminalize constitutionally protected speech. The group included right-leaning legal luminaries such as law school professors Eugene Volokh and former Judge Michael McConnell, as well as former U.S. Attorney General Michael Mukasey. The group also includes historically liberal-leaning First Amendment scholars, such as Floyd Abrams and Alan Dershowitz. The counsel of record on this notable amicus brief was then-private attorney James C. Ho — for whom, in the interest of full disclosure, I served as a law clerk upon his successful nomination as a judge on the U.S. Court of Appeals for the Fifth Circuit.

The amicus brief argued that “[a] political official has the right to threaten to perform an official act in order to persuade another government official to engage in some other official act.” It continued: “That is not a crime — it is core political speech.” Governor Perry’s quid pro quo with respect to withholding funds from the Travis County district attorney’s Public Integrity Unit, the brief contended, “is protected free expression, and the [g]overnor cannot be prosecuted for it.”

The Texas Court of Criminal Appeals, which is the Lone Star State’s highest court for criminal cases, agreed. “[P]ublic servants have a First Amendment right to engage in expression, even threats, regarding their official duties,” the Court held. “Many threats that … public servants make as part of the normal functioning of government” would be criminalized under the special prosecutor’s legal theory, the Court continued.

The Court’s rationale is not even remotely partisan or political; it is pure logic and common sense. Quid pro quos routinely happen in politics as a day-to-day reality of politics. Before issuing his DAPA executive amnesty, President Barack Obama consistently threatened to use his “pen and phone” if Congress did not take the legislative action he desired. Unruly congressmen often have their committee assignments threatened by committee chairmen if they fail to vote in accordance with congressional leadership’s desires. Heck, does anyone think that neither House Speaker Nancy Pelosi (D-CA) nor Senate Majority Leader Mitch McConnell (R-KY) engages in dozens of quid pro quos on a weekly basis as a rudimentary requirement of executing their chamber-wide leadership jobs?

The Trump impeachment defense should adopt this line of argumentation. How on earth can the president of the United States be impeached for engaging in constitutionally protected speech? How on earth can the president’s deployment of constitutionally protected speech, in the context of foreign policy, amount to an “abuse or violation of some public trust” that merits impeachment less than one year away from a presidential election? Has everyone in our politics who has engaged in a quid pro quo committed an offense that requires removal from office? If so, can we even have a functioning political system in the first instance?

A quid pro quo obviously cannot be conducted for personal pecuniary benefit — that would be bribery. But political exchanges for political value are utterly commonplace in our politics. Indeed, they ought to be uncontroversial. If this conduct is unlawful, then virtually everyone in Washington, D.C. should be in prison. And if this conduct is merely so unethical so as to require removal from office, then every president over at least the past century ought to have been impeached and every congressman in the current Congress ought to be voted out.

The most persuasive, politically wide-ranging, and tenable impeachment defense is therefore one that rests upon the crown jewel of our Bill of Rights: The First Amendment itself.

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