Trump administration should be careful not to make impeachable threats

Kellyanne Conway is no longer issuing litigation threats for a private citizen. Donald Trump is president-elect and soon will be president. He is obliged now to respect the First Amendment. Issuing retaliatory threats likely violates it, perhaps impeachably so.

{mosads}Trump comes to the presidency with a penchant for bullying critics by threatening to sue them, usually on frivolous grounds. The goal is not really to win a lawsuit but to intimidate critics into silencing themselves or else face costly and time-consuming litigation. He understands that rational people would often choose silence over litigation, even if they eventually might win in court. The threat has what we call a “chilling effect” on speech.

Even an organization of lawyers is not immune. Fearing a hypothetical lawsuit from Trump, the American Bar Association recently ordered one of its specialist groups to neuter a draft on the very topic of Trump abusing the legal process to intimidate critics. Yes, the self-censorship was ironic and disappointing, but it was not exactly baseless.

With Trump soon to be president, wariness has only grown. The concern now is how this pattern of abusing the law to bully critics may intensify once he has the power of the presidency at his disposal. What are the odds that the 70-year-old billionaire finally thickens his skin, as he gains far greater power and endures far more withering criticism than ever before? The world waits to see.

The first sign was not reassuring. Testing the defenses, outgoing Democratic leader and epic Republican-baiter Harry Reid proclaimed Trump “a sexual predator who lost the popular vote and fueled his campaign with bigotry and hate.” The eyebrow-raising response from Conway was that Reid “should be very careful about characterizing somebody in a legal sense.” The same old threat of abusive legal retribution was now coming from a president-elect.

As a threat of litigation, it was legally dubious. As a public figure and now a public official, Trump would have flimsy prospects of winning a defamation suit. He would have to prove—unambiguously—that the dozen or so women accusing him of sexual aggression have made false claims. If it were just a “he said/she said” (and “she said” and “she said” and so on), he would likely lose. He would also lose unless he could prove—again, unambiguously—that Reid himself thought the stories were all probably false but called Trump a “sexual predator” anyway. It is not a lawsuit Trump would win.

Of course, a thin-skinned billionaire may throw away his money on a loser lawsuit, or a threat of one. But a thin-skinned billionaire who happens to be the president has greater responsibilities. A president must “preserve, protect, and defend the Constitution,” including the First Amendment. He also must obey it.

A public official, including a president-elect, violates the First Amendment if he retaliates or even seriously threatens to retaliate against anybody for exercising the right to speak. To be lawful, a threat would have to be entirely unrelated to the powers of the office. But when a president-elect tells you to “be very careful” about what you say, the threat hits with the weight of the impending presidency behind it. It is not a mere litigation threat. The capacity to snuff out criticism is obvious, particularly when worded so vaguely.

Conway should have known better, as she now realizes, if her subsequent backtracking is any indication. She is no longer just parrying attacks in a political campaign; she is speaking for the president-elect. Trump has made clear that he thinks the First Amendment gives people too much latitude to criticize him. He is wrong. Robust criticism of a president is essential. In fact, suppressing it through a pattern of intimidation is probably impeachable.

J. Stephen Clark is a professor of law at Albany Law School.

The views expressed by Contributors are their own and are not the views of The Hill.