Trump Should Not Be Convicted. And Cruz and Hawley Are Not Seditionists | Opinion

The human soul naturally seems to hold a special contempt for betrayal. The Lord's passion in the Gospel begins with one of the most detested acts in human history, when Judas gives Him up for 30 pieces of silver. In Dante's Inferno, the lowest circle of hell is reserved for traitors. In our own history, treason is the only crime explicitly defined in our Constitution. And this is why the sudden tendency in Washington to loosely throw around allegations of "sedition" and "insurrection" against our colleagues and fellow citizens is despicable. Moreover, it is dangerous to our freedoms and the future of our republic.

The conclusion I reached with regard to the Constitution and electors last month is already known. Suffice it to say, I ended up disagreeing with some of my best friends in Congress on the matter; disagreement happens when your job is to confront tough and important questions about law and the Constitution. Now, however, the idea that members of the GOP who reached a different conclusion are somehow "seditionists"—as one Washington Post article wrote of Senators Ted Cruz (R-TX) and Josh Hawley (R-MO)—would be merely laughable were it not such a scurrilous and reckless charge.

First, there is a statute on the federal books under which the procedures for the objections sought by those members of Congress are expressly outlined. Those procedures were followed. As I have made clear, it is my view that the statute in question, the Electoral Count Act of 1887, was not meant for general objections. I believe its utilization requires a direct conflict from a state—for example, when a state has multiple, competing slates of electors. Regardless, following procedures permitted by a duly passed law is hardly the hallmark of "sedition"; rather, it is the core operation of speech and debate. Senators Cruz and Hawley are no more seditionists than then-Senator Barbara Boxer (D-CA) or Congressman Jamie Raskin (D-MD), each of whom has objected to a recent Republican president's electoral vote certifications—President Bush in January 2005 in Senator Boxer's case, and President Trump in January 2017 in Congressman Raskin's case.

For our nation to truly unite and move forward, it is critical that my learned, informed colleagues who came to such conclusions not be greeted with absurd and hypocritical accusations of sedition. In the case of my good friend and patriot, Ted Cruz, he should not be greeted with baseless allegations of attempted murder, or have coffins placed in the yard of his home.

Sens. Ted Cruz (R-TX) and Josh Hawley
Sens. Ted Cruz (R-TX) and Josh Hawley (R-MO) speaking on January 6, 2021. OLIVIER DOULIERY/AFP via Getty Images

Similarly, for the nation to move forward, it would be a mistake for the Senate to convict President Donald Trump under the articles of impeachment recently passed by the House. As I said when they were passed, the articles are deeply flawed because they allege crimes that are both difficult to prove and dangerous to free speech.

Putting aside that at least 45 GOP senators believe, with reasonable basis, that the impeachment should not be tried after the president leaves office, the House articles allege that Trump "incited" an "insurrection." These are loaded terms and demand a high standard of evidence to warrant their proper use. Incitement requires intent and a desire to produce imminent lawless action. Those requirements are not supported by the facts presented in the articles. Impeachment may not be a matter of criminal law, but these thresholds exist to protect freedom of speech. We should not create precedent that erodes those protections.

It will no doubt be asserted that this situation requires deploying such terms because of the infuriating actions of Capitol rioters and the tragic loss of five lives at a cherished symbol of our republic. The gravity of what happened that day is not lost on me; I was there. But the propriety of one's speech cannot be determined solely by others' reactions. That is a longstanding principle of First Amendment law. Hecklers do not get to veto speech, and unrelated rioters do not make senators "seditionists" or a former president an "insurrectionist."

Speech and debate—to say nothing of free speech, generally—must have a place in our society for the free exchange of ideas to flourish. That is a core, founding principle of this country, and it is why Congress exists in the first place: so that representatives of the people and states can debate public matters and then vote on them. That deliberative function of government is a blessing of the liberty of free speech. We must steward that liberty carefully.

Sedition and insurrection are serious charges because they deal with a grave matter and carry matching consequences. If we in Washington treat them flippantly, our freedom and our republic will both suffer as a result.

Rep. Chip Roy, a Republican, represents Texas' 21st congressional district.

The views expressed in this article are the writer's own.

Update (2/08/21, 12:15 PM EST): Senator Barbara Boxer has now been correctly identified. A previous version of this article inaccurately identified the 2005 objector as Senator Dianne Feinstein.