There is an old, hoary saying among lawyers: “Hard cases make bad law.” This maxim has been drilled into the heads of law students for generations.
The pursuit of Donald Trump, reminiscent of the mob carrying pitchforks and torches while chasing the monster in Frankenstein, readily comes to mind while following the efforts by virtually all Democratic federal officeholders, a few Republicans, and the major politically liberal news outlets to impeach-and-convict Donald Trump for a second time.
This current impeachment effort is exceedingly unwise, even if Trump’s conduct during and after the recent presidential election rightly horrifies all Americans devoted to the tenets of our democracy and to our assumptions about the peaceful transfer of power. One needs to recall that Joseph Biden was decidedly lukewarm, if not outright opposed, to a second impeachment, even though he was the one most directly affected by Trump’s effort to reverse Biden’s electoral victory. Biden will turn out to be viewed by history as wise, in contrast to House Speaker Nancy Pelosi’s and now-Senate Majority Leader Charles Schumer’s pitchfork-and-torch-laden pursuit of the Trump monster.
The story needs no detailed retelling. Anyone who was not comatose during the weeks between the election, the meeting of the electoral college, and the aftermath, knows the tale.
But the profoundly important question remains whether Trump, who stands impeached for a second time by the House vote taken on January 13, 2021, should be convicted when the Senate tries him on the impeachment. (Trump’s trial in the Senate is scheduled to begin the week of February 8.)
The Democrats’ goal in this second impeachment-and-trial is quite clear: To prevent Donald Trump from occupying the White House again. The goal is not, of course, the usual goal of an impeachment – to remove an errant public official from office – since the American electorate accomplished that this past November. Put more bluntly, those who wish to impeach-and-convict Trump this time around are looking not only to punish our sociopathic ex-president for his conduct while in office, but to prevent the American electorate from ever putting him back into the White House, even if a majority of them would like to see him re-take the presidency.
They are also seeking to punish him for his speech that some claim incited the crowd to attack the Capitol building. These critics are simply wrong. Trump’s speech lies within the definition of free speech, rather than unlawful incitement, as the Supreme Court has drawn the distinction in the famous 1969 case of Brandenburg v. Ohio.
The bottom line is that this second impeachment attempt is fundamentally anti-democratic. It is also very foolish, which is likely why President Biden has tried to discourage the move. Biden has stated that, “if we were six months out, we should be doing everything to get him out of office. Impeaching him again, trying to invoke the 25th Amendment, whatever it took. But I am focused now on us taking control as president and vice president on the 20th and to get our agenda moving as quickly as we can."
As if the Democrats’ attack upon democracy were not bad enough, the social media gurus in the private sector are acting in an equally worrisome fashion. While the Democrats seek to weaken the electoral system by barring Trump from subjecting his candidacy to democratic choice, the major actors in the social media world – Facebook and Twitter – have kept Trump from communicating to the American people on the two social networks with the broadest reach.
Due to Trump’s inaccurate posts on election fraud and the sympathetic posts he shared for those who attended the Capitol riots, Facebook and Twitter decided to ban him from their platforms. Facebook CEO Mark Zuckerberg contended that, "the risks of allowing the President to continue to use our service during this period are simply too great.” While Facebook and Twitter have the right to do what they are doing – they are, after all, private companies, even though each arguably has a near-monopoly – it is doubtful that they are exercising their near-monopolistic power wisely. (In fact, the Federal Trade Commission (FTC) filed anti-trust lawsuits against Facebook previously for engaging in anti-competitive practices where Facebook acquired, or attempted to, weaker companies before they became serious competitors.)
It is one thing to have defeated Trump at the polls via democratic means, and thereby to force him into luxurious self-exile at his Florida estate. But it is quite another to cut him off from the major avenues of mass communication, through which he otherwise would be expected to make his case for re-election. Trump has often used Twitter to make posts about policy changes, his support and disapproval of certain officials, election fraud, the Capitol riots, and any other events that influenced his presidency. In short, Trump relied on social media to spread his views and maintain his connection with his supporters.
The life of our republic has relied upon the fundamental belief that the Supreme Court has dubbed “the free marketplace of ideas” - the most trusted, and surely the most peaceful, way of determining truth and of making political decisions via democratic rather than autocratic methods. The current move aiming to remove Donald Trump from this marketplace is not only anti-democratic, but verges on being authoritarian if not totalitarian. At the very least, it is incompatible with liberal democracy and the ban deprives us of knowing what is on the autocrat’s mind.
It would be healthier for American democracy, and for our political system, as well as for avoiding dangerous social and political unrest, for cooler heads to prevail. Trump should be acquitted at his upcoming impeachment trial, and Twitter and Facebook should re-think the burdens that their censorship of Donald Trump casts upon the concept of democratic engagement in the free marketplace of ideas.
