Over the weekend, on January 9th, the ACLU's board of directors met to discuss the impeachment of President Trump. On January 10th, it unanimously decided he must be impeached.
It is one thing for politicians, pundits and newspapers to call for the impeachment of the president, quite another when an organization that claims to be the preeminent free speech institution in the nation agrees.
Among its complaints against Trump, the ACLU cites "false statements" he has made. This is ironic given the false statements the Union itself makes in its impeachment resolution. It opens by saying the board of directors touts its "commitment to nonpartisanship." This is manifestly false.
As I documented in two books published by Transaction Press, "The Politics of the ACLU" and "Twilight of Liberty: The Legacy of the ACLU," the Union has always been the legal arm of the liberal-left; it was never non-partisan. Moreover, it was never—from its founding in 1920—a consistent free speech advocate. Indeed, a few years after it was founded it threatened a libel suit against a magazine when it published an article that merely criticized its alleged non-partisan record!
The resolution also says that Trump "urg[ed] an unruly mob to riot." Similarly, the House impeachment resolution accuses the president of "inciting violence against the Government of the United States."
Neither the ACLU resolution nor the one proferred by the House offers any proof of Trump's alleged incitement to riot. In both cases, they simply assert he has done so. Yet as I pointed out previously, and as constitutional scholars Alan Dershowitz and Jonathan Turley have said, it is flatly wrong to accuse the president of inciting a riot. He did no such thing. His speech may have been offensive, but it clearly fell within the parameters of protected speech.
Referring to Trump's speech on January 6th, Dershowitz said on TV, "as much as I disapprove of it and many people disapprove of it on its merits, is protected by the First Amendment to the Constitution. It comes within core political speech. And to impeach a president for having exercised his First Amendment rights would be dangerous to the Constitution. It would lie around like a loaded weapon ready to be used by either party against the other party."
"Like many," Turley wrote, "I condemned that speech as it was still being given, calling it reckless and wrong. I also opposed challenges to electoral votes in Congress. However, Trump's speech does not meet the definition of incitement under the U.S. criminal code. Indeed, it would be considered protected speech by the Supreme Court."
This is rich. The same ACLU that accuses Trump of making "false statements" is now falsely accusing him of fomenting a riot.
"As a matter of organizational policy, the ACLU does not regularly call for the removal of public officials." That is what its impeachment resolution says. This is true. It is also true that it only does so when the public official is a Republican.
The ACLU previously called for Trump to be impeached in 2019. In the 1970s, it called for the impeachment of President Richard Nixon following the Watergate revelations. The founder of the ACLU, Roger Baldwin (the current ACLU claims that he was only one of ten who founded the organization—another false statement), labeled that decision "hysterical." "It's not in keeping with the Union's way of behaving, which is to go to the courts."
Baldwin touched on something very important. So did some board members at the time. They argued that it was wrong for the ACLU to claim that Nixon was guilty. After all, an impeachment proceeding is not a trial. This alone should convince a principled civil liberties organization not to call for impeachment. But the ACLU is not driven by principle; it is driven by politics.
Astonishingly, the ACLU even voted to deny Nixon the right to claim his First Amendment privilege against self-incrimination. As I wrote in "The Politics of the ACLU," this was "the first and only time in its history that the Union went on record advocating the suspension of civil liberties guarantees for any individual."
We are living in one of the most dangerous times in American history, making the McCarthy era look positively innocent. This time those calling for sanctions against those whose views they abhor comprise a Who's Who of the Left. Adding to this spectacle, we now have the ACLU making accusations of guilt absent the kinds of civil liberties protections traditionally afforded the accused.
