For months, the White House, congressional Republicans and the conservative punditocracy have rebutted House Democrats’ impeachment efforts by arguing that President Trump’s July 25 phone call with his Ukrainian counterpart, Volodymyr Zelensky, didn’t amount to some nefarious “quid pro quo.”
This strategy is mistaken. The “no quid pro quo” clash amounts to a semantic debate over a phone call transcript. And it is largely unpersuasive, on its own terms, and especially to the president’s haters.
Instead, there is a more intellectually compelling and politically potent line of argument that Trump and his defenders ought to adopt — free speech.
In 2014, a Texas grand jury indicted then-Gov. Rick Perry for supposedly 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 troubled DA resigned her post.
Let’s call a spade a spade: This was a quid pro quo.
At the time, an illustrious and ideologically diverse group of legal scholars — ranging from former Judge Michael McConnell and former US Attorney General Michael Mukasey on the right to liberal free-speech champions Floyd Abrams and Alan Dershowitz on the left — argued that the First Amendment protects a governmental official’s right to threaten taking a lawful action to attain a preferred political outcome.
In a nutshell, they argued that Perry’s threat amounted to constitutionally protected “core political speech.”
The Texas Court of Criminal Appeals, which is the Lone Star State’s highest court for criminal cases, agreed. “Public 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 Texas Court of Criminal Appeals’ rationale is neither partisan nor political; it is pure logic and common sense. And it was based on the crown jewel of our Constitution’s Bill of Rights: the First Amendment’s free-speech protection.
Fact is, the quid-pro-quo bogeyman is a routine occurrence in our day-to-day politics. The entire legislative premise of logrolling, a practice as old as Congress itself, is premised on quid-pro-quo arrangements.
In more modern times, before issuing his executive amnesty in 2014, President Barack Obama consistently threatened to use his “pen and phone” if Congress didn’t pass the laws he desired when it came to immigration policy. Similarly, committee chairmen routinely threaten to take away unruly lawmakers’ committee assignments if they fail to vote in accordance with congressional leadership’s desires.
To treat such cajoling as a high crime — and impeachable if the US president does it — would render governing impossible.
How can the duly elected president of the United States be removed from office for engaging in constitutionally protected speech aimed at getting a foreign leader to investigate corruption and past election meddling?
In Federalist 65, Alexander Hamilton defined the Constitution’s “high crimes and misdemeanors” impeachment criterion as an “abuse or violation of some public trust.” How can the president’s use of constitutionally protected speech — in pursuit of his foreign policy, however idiosyncratic — amount to such abuse? It plainly can’t.
Political exchanges for political value are ubiquitous in our politics. If this conduct is unlawful, then virtually every politician in Washington, DC, 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 legislator in the current Congress ought to be removed, as well.
The most intellectually tenable and politically far-reaching impeachment defense is therefore one that rests on the First Amendment itself.
Adapted from The Daily Wire, where Josh Hammer is editor-at-large. Twitter: @Josh_Hammer