Raskin uses searing analogy to counter Trump free speech defense at impeachment trial

On the second day of the Senate impeachment trial of former President Donald Trump, Rep. Jamie Raskin used powerful analogies to counter arguments made by Trump’s legal team that he was within his First Amendment rights to contest the election and hold a Jan. 6 rally contesting the certification of his loss to Joe Biden.

While the House of Representatives impeached Trump for “incitement of insurrection,” several Republican lawmakers and Trump’s legal team have argued that the former president’s rhetoric following his Nov. 3 election defeat was protected by the First Amendment. Raskin went squarely after that defense.

Quoting the well-known phrase from former Supreme Court Justice Oliver Wendell Holmes Jr. — “you can’t shout fire in a crowded theater” — Raskin went on to explain why Trump’s remarks went even further than creating a frenzy with a single word.

“This case is much worse than someone who shouted fire in a crowded theater,” Raskin, D-Md., the lead impeachment manager, said. “It’s more like a case where the town fire chief, who is paid to put out fires, sends a mob, not to yell fire in a crowded theater but to actually set the theater on fire. And who then, when the fire alarms go off and the calls start flooding into the fire department, does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV.”

Raskin used his analogy to show how Trump allegedly incited the riot by telling a crowd at a rally before the attack at the Capitol to show strength and “fight like hell” against an election Trump falsely claimed had been rigged and stolen. Trump told his supporters to march to the Capitol and said he would be with them. Instead, he returned to the White House to watch the ensuing mayhem on television.

“So then we say this fire chief should never be allowed to hold this public job again,” Raskin said, “and you’re fired and you’re permanently disqualified. And he objects. And he says [that] we’re violating his free speech rights just because he’s pro-mob or pro-fire, or whatever it might be.”

Trump’s lawyers have argued that the former president’s words were protected under the First Amendment, and that the impeachment is a partisan effort. But Democrats leading the impeachment effort have argued that not only does the amendment not apply to an impeachment proceeding, but it also doesn’t “shield public officials who occupy sensitive policymaking positions,” according to a brief filed this month by House impeachment managers.

Raskin said Wednesday that under the First Amendment, a private person can scream his or her support for the enemies of the U.S. or advocate the overthrow of the U.S. government. But a president, due to his or her position, cannot do the same.

“Is there anyone here who doubts that this would be a violation of his oath of office to preserve, protect and defend the Constitution of the United States,” Raskin asked rhetorically, “and that he/she could be impeached for doing that?”

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