Noah Feldman, Columnist

Trump Will Try to Make His Impeachment About Free Speech

The real issue is — once again — his election interference.

January 14, 2021 at 1:30 PM UTC

Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “To Be a Jew Today: A New Guide to God, Israel, and the Jewish People."

Not a peaceful protest.
Photographer: Jon Cherry/Getty Images

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With the House of Representatives having voted to impeach President Donald Trump for incitement to insurrection, it’s time to start contemplating what Trump’s defense will be in a Senate trial. The answer can be summed up briefly: Trump’s lawyers will argue that Trump did not commit a crime of incitement and that his words were protected by the First Amendment.

But wait, you may say, if you can remember Trump’s 2020 Senate trial 12 months ago (so much has happened since then that I barely can — and I testified during the House Judiciary Committee proceedings): Impeachment is for high crimes and misdemeanors under the Constitution. That doesn’t require conviction of a federal crime.