The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech ..." But this Free Speech clause simply does not apply to impeachments or other firing of government employees, for reasons which I will explain. The desperation of Donald Trump's impeachment case lawyers was clearly revealed by their argument that his conviction would violate this clause.
Let's look at parallel situations for other governmental employees. In the early 1890s a policeman was fired for off-duty politicking. He sued. The Supreme Judicial Court of Massachusetts refused relief. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," said future U.S. Supreme Court Justice Oliver Wendell Holmes, then sitting on the Massachusetts court.
By analogy, Donald Trump may have had a constitutional right to give inflammatory speeches, but he had no constitutional right to be president.
Although later courts have gotten a little queasy about Holmes' argument, it made a valid point then and still does today.
Donald Trump may have had a constitutional right to give inflammatory speeches, but he had no constitutional right to be president.
The Hatch Act allows for firing of federal civil servants for specified political activities, including certain kinds of political speech. Banning such speech would clearly violate the Free Speech clause if done by a law applying to the general public. But the courts have repeatedly upheld the Hatch Act.
The constitutional difference between the Hatch Act and a general law prohibiting exactly the same speech lies in the kind of punishment they inflict. The rules violated by civil servants who run afoul of the Hatch Act can be enforced by removal from public office, a withdrawn or terminated inducement. Laws banning the very same activities for the general public would be enforced by a sanction — a deprivation of life, liberty, or property, as the Constitution puts it.
This important distinction is clearly and specifically stated in the Constitution's provisions for impeachment:
"Judgment in cases of impeachment shall not extend further than to removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the United States [withdrawn inducements]; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law [sanctions]."
The only punishment if Trump had been convicted would have been removal from the presidency (which had already happened), and ineligibility for future government office, both of which are discontinued or denied inducements. There would have been no sanctions and the Free Speech clause was therefore inapplicable.
If Donald Trump had been convicted on the impeachment and then charged with a criminal offense for his speech, that would have been an appropriate time for his lawyers to invoke the First Amendment. The time may still come when they need to do that. Although it is argued that a sitting president cannot be indicted for a crime, Trump is no longer president.
A president's words are not just words. They are a critical part of his actions as chief executive, and they come from a person who occupies a "bully pulpit" as noted by Theodore Roosevelt. As President Calvin Coolidge put it, "The words of the president have an enormous weight and ought not be used indiscriminately ."
It was irrelevant whether Mr. Trump intended his "rigged elections" rhetoric before and after the election, his inflammatory addresses to rallies, and his speech to the mob on January 6 to lead supporters to attack the Capitol.
If he intended to get them to attack, he was clearly guilty of fomenting insurrection. But even if he didn't intend any such result, testimony by numerous rioters that they understood him to be advocating an attack should have sufficed to convict him for using his bully pulpit so incompetently as to give them this impression.