On the recordJanuary 13, 2021
I thank the gentleman for yielding me the time. These articles charge incitement. Once before, the House impeached a President of the United States within a week of the alleged offense. That was President Andrew Johnson days after he removed Secretary of War Edwin Stanton in 1868. Over 50 years later, the Supreme Court declared unconstitutional the Tenure of Office Act that President Johnson had refused to obey. In other words, the House was not only hasty, it was wrong, punishing noncompliance with the unconstitutional law. At least when that occurred, the constitutionality of the law in question was unsettled. Here, however, an angry House majority races to impeachment in direct violation of settled constitutional law. Again, the articles before the House charge incitement to insurrection. They do not specify inciting language. The law is well settled: ``What is required, to forfeit constitutional protection, is incitement speech that `specifically advocates' for listeners to take unlawful action.'' The violence last Wednesday was abhorrent. Perpetrators should be prosecuted. Those responsible for security decisions held accountable. Congress can disapprove, revile, condemn, even censure. But Congress cannot, consistent with the rule of law, punish that which the Constitution's First Amendment declares protected. If my colleagues do it, the violators of the duty to this Constitution, however angry, will be those who vote for this Article of Impeachment.…
