Impeachable Speech

• Jurisdiction: United States,Federal
• Publication year: 2020
• Citation: Vol. 70 No. 1

Impeachable Speech

Katherine Shaw

IMPEACHABLE SPEECH

Katherine Shaw^*

ABSTRACT

Rhetoric is both an important source of presidential power and a key tool of presidential governance. For at least a century, the bully pulpit has amplified presidential power and authority, with significant consequences for the separation of powers and the constitutional order more broadly.

Although the power of presidential rhetoric is a familiar feature of the contemporary legal and political landscape, far less understood are the constraints upon presidential rhetoric that exist within our system. Impeachment, of course, is one of the most important constitutional constraints on the president. And so, in the wake of the fourth major presidential impeachment effort in our history, it is worth pausing to examine the relationship between presidential rhetoric and Congress's power of impeachment.

Although presidential rhetoric was largely sidelined in the 2019-2020 impeachment of President Donald Trump, presidential speech actually played a significant role in every other major presidential impeachment effort in our history. Prior to President Trump, three presidents had faced serious impeachment threats: Andrew Johnson, in 1868; Richard Nixon, in 1974; and Bill Clinton, in 1998 and early 1999. In each of these episodes, the debate around impeachment encompassed, among other things, public presidential rhetoric—lies and misrepresentations; statements that took aim at Congress or undermined the rule of law. In the case of Andrew Johnson, presidential rhetoric formed the basis of one of the articles of impeachment approved by the House of Representatives. In the case of Richard Nixon, the first article of impeachment approved by the House Judiciary Committee—though never considered by the

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full House—made extensive reference to the president's public statements. And one of the possible offenses identified in Independent Counsel Ken Starr's impeachment referral focused on Bill Clinton's lies to the American people; an impeachment article tracking that recommendation was initially debated by the House Judiciary Committee, but the language regarding public speech was removed before the committee vote. These aspects of impeachment history have largely escaped scholarly notice, and they may prove instructive as both Congress and the public debate impeachment, as well as other possible constraints on presidential rhetoric and presidential power, in 2020 and beyond.

INTRODUCTION ................................................................................................. 3

I. THE PRESIDENT'S WORDS IN IMPEACHMENT PROCEEDINGS: A BRIEF HISTORICAL OVERVIEW ........................................................................ 7

A. Andrew Johnson: "Intemperate, inflammatory and scandalous harangues. . . peculiarly indecent and unbecoming in the chief magistrate of the United States" ................................................ 11
B. Richard Nixon: "False and misleading public statements . . . contrary to his trust as president and subversive of constitutional government" .................................................... 21
C. Bill Clinton: "Mis[leading] his family, his friends and staff, and the Nation to conceal the nature of his relationship with Ms. Lewinsky" ................................................................................... 32

II. ANALYSIS: IMPEACHABLE SPEECH ...................................................... 39

A. The Function of Precedent in Impeachment ............................... 40
B. Impeaching "The Rhetorical President" .................................... 42
C. Lies and Misstatements ............................................................... 45
D. Incitement ................................................................................... 47
E. "Anticonstitutional" Statements and Conduct ........................... 49
F. Beyond "High Crimes and Misdemeanors" ............................... 50
G. Constitutional Shields ................................................................. 52

III. PRESIDENT TRUMP AND IMPEACHABLE SPEECH .................................. 56

A. Lies and Misstatements ............................................................... 57
B. Incitement ................................................................................... 57
C. "Anticonstitutional" Speech & Demagoguery ........................... 59

CONCLUSION ................................................................................................... 62

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INTRODUCTION

Since taking office in January 2017, President Donald Trump has used the bully pulpit in ways that break, often dramatically, from the rhetorical norms that preceded him.¹ So it is perhaps not surprising that the President's rhetoric was at the center of a number of early calls for his impeachment. One of the articles of impeachment introduced by Representative Al Green in December 2017 identified President Trump's support for "white supremacy, bigotry, racism, anti-Semitism, white nationalism [and] neo-Nazism," and accused him of "inciting hate and hostility" by "sowing discord among the people of the United States, on the basis of race, national origin, religion, gender, [and] sexual orientation."² In 2019, after President Trump told George Stephanopoulos that if offered opposition research by Russia or China prior to the 2020 election, "I think I'd take it,"³ Elizabeth Warren responded by tweeting, "It's time to impeach Donald Trump."⁴ The President's mid-2019 attack on four freshman congresswomen, including a suggestion that they "go back . . . to the crime infested places from which they came" (all are women of color, all are American citizens, and three were born in the United States)⁵ resulted in a House resolution

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condemning the statements,⁶ as well as spurring another round of calls for impeachment.⁷

Still, despite these early congressional moves to link inflammatory presidential speech to impeachment, President Trump's public rhetoric played a relatively minor role in the fall 2019 impeachment hearings before the House Intelligence and Judiciary Committees, and was similarly sidelined in the President's January 2020 Senate impeachment trial. Those proceedings focused on a private phone call between President Trump and Ukrainian President Volodymyr Zelensky, as well as President Trump's efforts, both preceding and following that call, to predicate a White House meeting and military aid upon Ukrainian announcements of investigations into President Trump's political rivals.⁸ Similarly, the two articles of impeachment approved by the House of Representatives in December 2019 focused on presidential conduct, not speech: the first article charged the President with abuse of power in his pressure campaign against Ukraine, and the second charged him with obstruction of Congress for his categorical defiance of impeachment-related subpoenas for documents and testimony.⁹

Although President Trump's rhetoric was not front and center in the impeachment proceedings against him, presidential speech has actually played a significant role in every other major presidential impeachment effort in our history. Three previous presidents have faced serious impeachment threats: Andrew Johnson, in 1868; Richard Nixon, in 1974; and Bill Clinton, in 1998 and early 1999. In each of these efforts, the debate around impeachment

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encompassed, among other things, public presidential speech—lies and misrepresentations; statements that took aim at Congress or undermined the rule of law. In the case of Andrew Johnson, presidential rhetoric formed the basis of one of the articles of impeachment approved by the House of Representatives. In the case of Richard Nixon, the first article of impeachment approved by the House Judiciary committee—though never considered by the full House—made extensive reference to the President's public statements. And one of the possible offenses identified in Independent Counsel Ken Starr's impeachment referral focused on President Clinton's lies to the American people; an impeachment article tracking that recommendation was initially debated by the House Judiciary committee, but the language regarding public speech was removed before the committee vote.¹⁰ Taken together, these episodes show that history offers considerable—though contested—support for including presidential rhetoric within an impeachment case against a sitting president.

Of course, the significance of these historical episodes is subject to debate: reasonable minds can differ about the status as precedent of the early steps toward impeaching President Nixon, whose resignation foreclosed the prospect of further impeachment proceedings, or the House's impeachments of Andrew Johnson and Bill Clinton, both of whom were acquitted by the Senate (Clinton by a significant margin, Johnson much more narrowly).¹¹ But whether or not they constitute precedent in any formal sense, these episodes do shed at least some light on the ways members of Congress, actors within the executive branch, and the public at large conceived of the relationship between presidential speech and the process of impeachment at three critical moments in our history.

A few caveats are in order before proceeding further. First, this Article is limited to presidential speech that is in some sense public. Although speech is a component of many of the categories of conduct we most associate with impeachment—perjury, for example, or obstruction of justice—i have not attempted a full consideration of the role of presidential speech in those sorts of impeachment charges. That is because my goal here is to connect the public presidency with impeachment history. The private speech of presidents, and the possibility that such speech might supply evidence of, or itself constitute, the sorts of "treason, bribery, or other high crimes and misdemeanors" the Constitution...