Raskin uses analogies to shred Trump’s free speech defense

Rep. Jamie Raskin made powerful arguments on Wednesday during the Senate trial of former President Donald Trump.

Video Transcript

REP JAMIE RASKIN: Incitement to violence is, of course, not protected by the First Amendment. That's why most Americans have dismissed Donald Trump's First Amendment rhetoric simply by referring to Justice Oliver Wendell Holmes's handy phrase-- "you can't shout 'fire' in a crowded theater." But even that time-honored principle doesn't begin to capture how off-base the argument is. This case is much worse than someone who falsely shouts 'fire' in a crowded theater.

It's more like a case where the town fire chief who's 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, asking for help, does nothing but sit back, encourage the mob to continue its rampage, and watch the fire spread on TV with glee and delight.

So then we say, this fire chief should never be allowed to hold this public job again. And you're fired and you're permanently disqualified. And he objects and he says, we're violating his free speech rights just because he's pro-mob or pro-fire or whatever it might be. Come on. I mean, you really don't need to go to law school to figure out what's wrong with that argument. Here's the key.

Undoubtedly, a private person can run around on the street expressing his or her support for the enemies of the United States and advocating the overthrow of the United States government. You've got a right to do that under the First Amendment. But if the president spent all of his days doing that, uttering the exact same words, expressing support for the enemies of the United States and for overthrowing the government, 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?

And that he or she could be impeached for doing that. Look, if you're President of the United States, you've chosen to side with your oath of office. And if you break it, we can impeach, convict, remove, and disqualify you permanently from holding any office of honor, trust, or profit under the United States. As Justice Scalia once said memorably, "you can't ride with the cops and root for the robbers."

And if you become insighter-in-chief to the insurrection, you can't expect to be on the payroll as commander in chief for the union. Trump was the President of the United States and he'd sworn to preserve, protect, and defend the Constitution. He had an affirmative binding duty, one that set him apart from everyone else in the country, to take care that the laws be faithfully executed, including all the laws against assaulting federal officers, destroying federal property, violently threatening members of Congress and the Vice President, interfering with federal elections, and dozens of other federal laws that are well-known to all of you.

When he incited insurrection on January 6, he broke that oath. He violated that duty. And that's why we're here today. And that's why he has no credible constitutional defense.