| Get Jonathan Bernstein's newsletter every morning in your inbox. Click here to subscribe. The trial brief submitted by Donald Trump's lawyers on Tuesday leans heavily on the claim that a former president, having been impeached, is no longer subject to a Senate trial. That's not a particularly strong argument, but it is a legitimate one with some scholarly support, and in practical terms it's clearly the best they have — given that 45 Republican senators have already indicated that they're inclined to buy it and clearly would rather talk about such constitutional provisions than about what Trump did in the final 10 weeks of his presidency.
What I found more interesting in the brief was an argument that, if we attribute it to Trump (and not just to lawyers throwing anything they have at the wall and hoping it sticks), helps underline exactly why he was such a bad president. What's fascinating here is a "free speech" claim: that Trump's various attempts to subvert the election were protected by his First Amendment rights, and therefore not subject to legitimate impeachment.
Jonathan Adler knocked this argument down last month: The Amendment does not generally protect speech uttered in the course of one's employment, and even if a government employee engages in protected speech in a private capacity, off the job, on a matter of public concern, it may still be sanctioned if the government has interests that sufficiently outweigh the employee's interest in speaking freely. So, for instance, if a police officer engages in otherwise protected speech off-the-job, it could still result in that officer being fired if the speech might compromise the ability of the officer to perform his or her job, or call the officer's fitness into question. So, while racist speech may be protected, police departments can still discipline officers for off-duty racist speech.
Adler was focused on the government here. But it's obviously more broadly true of any employer. Of course employees can be fired for spreading lies about the organization they work for while neglecting the duties they were hired to perform. Of course First Amendment rights offer no protection for employees who do that. No one who has ever held a job would doubt that.
And there's the problem: Trump treated the presidency as a prize he had won, but in fact it was a job he was hired to do. Yes, the Constitution gives great latitude to the occupants of the office as to exactly how they perform their duties. And yet at the end of the day, the president is only an employee — and he or she is only one of many people hired to collectively govern the nation. Trump never seemed to understand that.
Perhaps that's why he accomplished so little over his four years in office, with most of his achievements already melting away. Oh, the judges he appointed will stay put for a while. And he (along with a Republican Congress) can take credit or blame for a big tax cut and some upgraded border fencing. But otherwise, he achieved little of substance and plenty that has already been overturned by Joe Biden. As Jonathan Chait has argued, that's in strong contrast to the enduring accomplishments of Barack Obama's administration (although to be fair, the 111th Congress also deserves much of the credit or blame for them, and Trump had to work with much less capable Republican majorities).
We don't have a final verdict on Trump's presidency. To the extent that he accelerated the antidemocratic tendencies of the Republican Party, his legacy may well loom large — especially if the radicals he elevated wind up taking down constitutional government after all. But even that was almost incidental to his presidency. The truth is, he just didn't do the job, and now he's brazen enough to use that as a defense in his second impeachment trial.
1. Megan Ryan and Darin Self at the Monkey Cage on Myanmar.
2. Dan Drezner on the choices made by Deborah Birx and Anthony Fauci.
3. My Bloomberg Opinion colleague Noah Smith on green infrastructure spending.
4. David Leonhardt on the evidence that the economy does better when Democrats are in the White House. I'm not entirely convinced that there's a real causal relationship there, but it's worth knowing the surface numbers.
5. And Aaron Blake on Senator Lindsey Graham's not-at-all scary threat to call witnesses at Trump's impeachment trial. Get Early Returns every morning in your inbox. Click here to subscribe. Also subscribe to Bloomberg All Access and get much, much more. You'll receive our unmatched global news coverage and two in-depth daily newsletters, the Bloomberg Open and the Bloomberg Close. | 
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