Expressing A Political Opinion? Or Supporting Insurrection?

No matter what you think of them—and nobody thinks less of them than I do—you'd be expelling them for legally expressing a political opinion. https://t.co/R4oX1CnRci via @CharlesPPierce

— Esquire (@esquire) January 21, 2021

I suppose it's a fine line. Certainly it's a matter of definition.  When Hawley raised his fist to the crowd, was he expressing a political opinion, or expressing solidarity with the crowd about to attack the Capitol?  More likely the latter, as his gesture can't really be called incitement, and I've no reason to think he expected them to attack.  But after the crowd had left the building and order had been restored, was it still a "political opinion" to object to the counting of votes on grounds that had been rejected by 60 courts, including the U.S. Supreme Court?  Were Hawley and Cruz expressing political opinions?  Or trying to curry favor with the same potential voters now being rounded up by the FBI?  And either way, are their political opinions so privileged they cannot be removed from the Senate by a 2/3rds vote of that body, which can remove a Senator (or a President) for damned near any reason they choose, since the Court will consider it a "political action" (legal term of art in this case) and not review the vote for legal or Constitutional support (Congress is established under Art. I of the Constitution, and actually has authority over Art. II (President and Vice-President) and Art. III (Courts; it can set the number of courts, the jurisdiction of the courts, even the number of judges on each court up to and including the Supreme Court.)  Congress can also, by express terms of the Constitution, set its own rules.  Maybe they should set them the way you would like, or I would like; but they don't have to.

Compare this to the impeachment of Donald Trump, now a private citizen.  Would the Senate be punishing Trump for legally expressing an opinion protected by the First Amendment, as political opinions also are (same creature, IOW)?  Well, some GOP Senators want to argue so, in order to defeat the impeachment before it comes to an up or down vote on Trump's fate as a politician.  But if they lose, should Trump win regardless?  Why not?  What's the difference between Trump's opinion, and Cruz/Hawley's?

The difference is, this is not a legal effort, it's a political one.  The Senate can ban Trump from ever running for office again and there's not a damned thing Trump or Alan Dershowitz can do about it (this is pretty much his argument, by the way, as he declined to represent Trump but insisted he would go on protecting First Amendment rights for all comers.  Brave, brave Sir Robin.).  The Senate can also show Cruz and Hawley the door in a fit of pique over what happened on January 6th, with the same recourse by either man.  Personally, I wouldn't cry about it, or be too upset by the precedent.  If, the next time the Capitol is overrun by thugs urged on by the sitting POTUS, Senators are fool enough to reprise Cruz/Hawley, let their ouster be a warning.  Of course, if another POTUS is inspired to urge thugs to overrun the Capitol, let Trump's impeachment and banishment from politics serve as warning, too.

You see where this ends up:  Cruz and Hawley could be the poster children for not chasing the fringe of American paranoid politics (which curiously is always more right wing than left....) from the Senate floor after a debacle we should first act to see can never happen again (i.e., convict Trump).  Their political careers seem a small price to pay for that.  We should have done it with McCarthy; might have warned Hawley and Cruz off the "political opinion" defense they'll probably raise.  And frankly, Cruz and Hawley were worse than McCarthy.  None of the protestors has disavowed Hawley, and some said in the Capitol Cruz would approve of what they were doing.

That's enough for me, right there.

But it would take a 2/3rds vote to do it, and even McCarthy was only censured; finally.  So this little trolley car ethics problem isn't likely to draw breath and puff up into reality anytime soon.  But even if it did, it wouldn't bother me a bit.  I mean, it's not like the parties don't do this all the time:

"She also was unapologetic about her impeachment stance, framing it as a vote of conscience and privately telling colleagues she wanted to be on the right side of history, political consequences be damned."https://t.co/Xp0CSD9Faj

— Alex Burns (@alexburnsNYT) January 22, 2021

No, Lynn Cheney won't lose her seat; but she may lose some privileges:  all for expressing a political opinion.  And the Democrats would do it, too, were the shoe on the other foot.  It's how a legislature functions.

Despite the quasi-sacramental nature of the First Amendment in popular discourse, even political opinion is not sacred speech which can never go too far.  Not to me, anyway.