Donald Trump won’t say a word at his impeachment trial in the Senate next week, having refused the invitation of House impeachment lead manager Rep. Jamie Raskin (D-Md.) to testify. Instead, the former president’s lawyers say they’re going to argue that what Trump said to the “Stop the Steal” rally crowd on Jan. 6 is protected free speech under the First Amendment.
Friday afternoon 144 leading First Amendment lawyers and constitutional scholars said that the claim that Trump’s conduct leading up to the riot at the U.S. Capitol is shielded by the First Amendment is “legally frivolous” and should not stop the Senate from convicting him of the inciting an insurrection article of impeachment.
A letter circulated by the group states, in part, “Although we differ from one another in our politics, disagree on many questions of constitutional law, and take different approaches to understanding the Constitution’s text, history, and context, we all agree that any First Amendment defense raised by President Trump’s attorneys would be legally frivolous. In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office.”
Among the lawyers, scholars and litigants who signed the letter, a copy of which was shared with The New York Times, were Floyd Abrams, who has fought marquee First Amendment cases in court; Steven G. Calabresi, a founder of the conservative Federalist Society; Charles Fried, a solicitor general under President Ronald Reagan; and pre-eminent constitutional law scholars like Laurence Tribe, Richard Primus and Martha L. Minow.
Bruce L. Castor Jr. and David Schoen, Trump’s lead defenders, signaled this week that the First Amendment argument was going to be their principal defense. They argued in a written filing that the House’s “incitement of insurrection” charge “violates the 45th president’s right to free speech and thought.” The lawyers group put forth a three point dismissal.
They assert that the First Amendment has no real place in an impeachment trial. They noted that senators are not determining whether Trump’s conduct was criminal, but whether it sufficiently violated his oath of office to warrant conviction and potential disqualification from holding future office.
“Asking whether President Trump was engaged in lawful First Amendment activity misses the point entirely,” they wrote. “Regardless of whether President Trump’s conduct on and around January 6 was lawful, he may be constitutionally convicted in an impeachment trial if the Senate determines that his behavior was a sufficiently egregious violation of his oath of office to constitute a ‘high crime or misdemeanor’ under the Constitution.”
“No reasonable scholar or jurist could conclude that President Trump had a First Amendment right to incite a violent attack on the seat of the legislative branch, or then to sit back and watch on television as Congress was terrorized and the Capitol sacked,” they wrote.