Robbins: Lessons from Trump’s second impeachment trial
By the time you read this, Trump’s second impeachment trial will likely have concluded. Notwithstanding that from the outset the outcome seemed politically preordained, the ignominy of this president having been twice impeached will cast a long and damning shadow. Still, though, as in most things, there are lessons to be learned, pearls to be gleaned from the rancor and the partisan swill.
During the course of the proceedings, the lawyers — as lawyers are to do — leaned on the law. In fact, there is an old adage in the law; when the law is with you, pound on the law; when the facts are with you, pound on the facts; and when neither are with you, pound on the table. We saw some of each of that. But it is the law here that merits further mention, three cases in particular which the lawyers beat, battered and strangled in favor of the outcomes they preferred: Wood v. Georgia; Bond v. Floyd; and Brandenburg v. Ohio.
Wood was first. The 1962 Supreme Court case centered in the Jim Crow south. In June 1960, a judge in Bibb County, Georgia, instructed a grand jury to investigate what he termed “an inane and inexplicable pattern” of “Negro bloc voting” and “rumors and accusations” that candidates for public office had paid large sums of money to obtain the black vote. The next day, Sheriff James Woods issued a press release, criticizing the judge, calling the action a “crude attempt at judicial intimidation of negro voters and leaders, or, at best, as agitation for a ‘negro vote’ issue in local politics.”
Woods was convicted of contempt of court in a bench trial (a trial without a jury) for his harsh criticism of the local trial judges. A Georgia court of appeals ruling affirmed Woods’ convictions. The Supreme Court reversed.
Applying the “clear and present danger” test, the Supreme Court ruled that individuals — public officials included — when concerned with ongoing grand jury proceedings may speak freely about the proceedings and can only be charged with contempt of court when their speech immediately creates a serious threat to the administration of justice. Chief Justice Earl Warren wrote that Woods “… was an elected official and had the right to enter the field of political controversy, particularly where his political life was at stake.”
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Trump’s lawyers attempted to draw equivalency between Woods’ right to free speech regarding issues of “political controversy” in order to dispel the allegation that Trump called the massed troops of protesters to violence. The kernel shared between Woods and Trump is the issue of free speech. The breach, however, may lie the Wood Court holding that Woods’ speech was not likely to incite “a serious threat to the administration of justice” whereas Trump’s speech has been characterized by the article of impeachment as a call to arms. The “nut” then is the intent, imminence and likely outcome of what was said.
In Georgia again …
Julian Bond, an African-American, was elected to the Georgia House of Representatives in June 1965. Bond was a member of the Student Nonviolent Coordinating Committee which opposed the Vietnam War. After election, during a news interview, Bond endorsed the SNCC’s views, and stated that he did not support the war. As a pacifist, he said, he was opposed to all war.
Members of the Georgia House of Representatives objected to Bond’s statements, and petitioned to prohibit him from joining the House. A hearing was held, and Bond repeated his pacifist viewpoints, but maintained that he never urged draft-card burning or other law violations. The House committee voted to prohibit Bond from joining the House.
Bond sued in federal court, but the District Court upheld the House, concluding that Bond’s remarks exceeded criticism of national policy and that he could not in good faith take an oath to support the State and Federal Constitutions. Bond appealed to the Supreme Court.
The Supreme Court — in a unanimous decision — ordered the Georgia House of Representatives to permit Bond to take his seat, holding that although a State may impose oath requirements on legislators, it cannot limit their capacity to express views on local or national policy.
What the Trump team tried to wrest from Bond was that Trump’s exhortations were the mere expression of his political beliefs. What the prosecuting mangers contend is that his conduct and his statements from the election forward were nothing of the sort; rather than an expression of Trump’s political beliefs, it was a call for insurrection.
Brandenburg, a 1969 case, centered around Clarence Brandenburg, a Ku Klux Klan leader in rural Ohio. In the summer of 1964, Brandenburg invited a Cincinnati reporter to cover a KKK rally. Portions of the rally were filmed, showing several men in robes and hoods, some carrying firearms, first burning a cross, and then making speeches. One of the speeches made reference to the possibility of “revengeance” against those who the Klan expressed their hatred. One speech announced plans for a march on Congress. Another advocated for the forced expulsion of African-Americans to Africa and Jewish Americans to Israel.
Brandenburg was charged with advocating violence under Ohio’s criminal syndicalism statute for his participation in the rally and for the speech he made. In relevant part, the statute proscribed “advocat[ing] … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.”
Brandenburg was tried, convicted and appealed.
The question posed to the Supreme Court was “Did the Ohio law violate Brandenburg’s right to free speech as protected by the First and Fourteen amendments?
In its landmark decision what the Court held was that the Ohio law violated Brandenburg’s right to free speech and issued a two-pronged test to evaluate when speech may be prohibited: First, the Court said, speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and, second, it is “likely to produce such action.” The House Managers contend that this was clearly Trump’s intent and the likely outcome of his speech. As such, Brandenburg holds, Trump’s speech was not — as his lawyers contend — protected.
At the least, “Trump Impeachment, The Sequel” affords a lesson in the law and an opportunity to witness a tortured moment in our history. Perhaps at most, it may lend an opportunity to heal and to move forward as one nation, indivisible.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business & commercial transactions; real estate & development; family law, custody, & divorce; and civil litigation. Robbins may be reached at 970/926.4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark” (an apocryphal tale) and “The Stone Minder’s Daughter,” are currently available at Amazon.com.
