Let Trump say what he wants — the president has a right to free speech

There is an old adage that “if all you have is a hammer, every problem looks like a nail.” For some Democrats, it seems like impeachment is their only tool in dealing with President Trump. That makes every objectionable comment or act by Trump an impeachable offense. The latest example came from Rep. Al Green (D-Texas), who has decided to file a resolution in the House of Representatives for impeachment after Trump called for players kneeling during the national anthem to be fired.

While Green’s effort is viewed as unlikely to garner much support, we have had increasing calls for impeachment and, more ominously, arguments that impeachments may be properly based for any reason supported by enough members. Under that standard, most recently advanced by Rep. Maxine Waters (D-Calif.), opposing anthem kneelers would easily satisfy the constitutional standard, since there would be no standard.

{mosads}In a speech before the Congressional Black Caucus town hall, Waters criticized other Democrats for failing to move aggressively for impeachment. She said, “Impeachment is about whatever the Congress says it is. There is no law that dictates impeachment. What the Constitution says is ‘high crimes and misdemeanors,’ and we define that.” In so saying, Waters dismissed the constitutional obligation to find “high crimes and misdemeanors” in assuring supporters that they can simply get rid of Trump on a muscle vote. In 1970, when Gerald Ford was still a member of the House of Representatives, he said, “An impeachable offense is whatever a majority of the House of Representatives considers it to be.”

On a very superficial level it is a political decision in the sense that it’s a decision that is ultimately made by politicians. However, that does not make the basis for decision purely political. It is akin to saying that, since a priest can grant absolution on his own authority, sin is a discretionary pastoral question. The Framers struggled to establish a standard and process to make impeachment both difficult and substantive. 

That danger is more than evident in Green’s use of the NFL controversy. Trump caused an uproar at a recent Alabama rally when he asked, “Wouldn’t you love to see one of these NFL owners, when somebody disrespects our flag, to say, ‘Get that son of a b—h off the field right now?’” That was it for Green who was watching the rally live. He said, “This is not just another person. This is the president of the United States of America stifling free speech, and he does it in such a crass, rude, crude and unrefined way. To label a person who is peacefully protesting, label this person the son of a dog? No way.”

But Trump is also a citizen with free speech rights. Indeed, presidents have long viewed their function as speaking to the values of the nation. More importantly, “stifling free speech” through the exercise of free speech is a curious concept, and it is a dangerous concept as a basis for impeachment. Trump was expressing his view on the meaning of these protests and objecting to their appearance at professional sporting events. One can certainly disagree with that view, but it is his view, and he has a right to express it. Yet Green said, “These comments about free speech, which is something I cherish, they have caused me to conclude that now is the time to let the world know that there is at least one person in the Congress who believes that the president has gone too far.”

When Green says he cherishes free speech, it is hard to tell if he cherishes the message or the act. If Green is correct and all protests should be allowed, would he also support protests in private workplaces by racists or other hate groups? Even if the same protections for free speech were extended to private companies, the president exercising free speech would not be viewed as a form of censorship, regulation or criminalization of speech. If we were to accept the oxymoronic concept of “anti-speech” speech, most presidents would be guilty of the offense in denouncing certain groups or forms of protests.

In reality, the players do not have a constitutional right to protest in their workplace, any more than other employees. The owners of the team could bar protests as a condition for employment as disruptive to the games and inimical to their business. (Indeed, the NFL has a rule that players during the anthem must “stand at attention, face the flag, hold helmets in their left hand, and refrain from talking” or face discipline. That does not, however, appear in the 2017 version of the NFL official playing rules).

Some like Dallas Cowboys owner Jerry Jones clearly do not object to the protests and even joined in kneeling during the anthem with the players. However, it remains the choice of the company. The First Amendment was designed to protect against government restrictions on free speech. Otherwise, businesses could not prevent employees from giving you a lecture on socioeconomic inequalities before handing over your coffee or dry cleaning. Most customers are looking for a latte, not a lecture, at Starbucks.

Nevertheless, Green not only believes that Trump’s NFL comments were the last straw, he insists there were “many, many things that could have been the straw.” Indeed, if you accept the expression of values as impeachable, impeachment becomes simply a matter of pulling “straws.” While Green would not say that the criticism of Trump was racist, he said, “Whether something is done by accident or design, it’s the effect that matters greatly. Whether it’s being done with malice, aforethought or no thought at all, the harm still persists.”

So there you have it. Green appears entirely unconcerned (as does Waters) with the implications of reducing impeachment to such visceral and fluid determinations. He insisted that “history will vindicate” him. Neither Green nor Waters should wait for “vindication.” History has already answered this call for impulse-buy impeachments. The Framers saw the great abuses caused not only by tyranny of nobility, but tyranny of the majority. They sought to insulate our government from the transient impulses of politics. Otherwise, impeachment becomes little more than grabbing any opportunistic excuse for impeachment like so many “straws” in the political wind.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.