Feb 5, 2021 - Politics & Policy

Lawyers blast Trump's First Amendment defense as "legally frivolous"

Donald Trump

Photo: Mandel Ngan/AFP via Getty Images

More than 140 constitutional lawyers and scholars wrote in a letter Friday that the First Amendment claims made by former President Trump's lawyers are “legally frivolous” and do “not prevent the Senate” from convicting him during his impeachment trial, set to begin next week, per the New York Times.

Driving the news: Trump’s lawyers claim that the former president's conduct surrounding the deadly Jan. 6 Capitol siege is protected by the First Amendment. They also argue Trump can’t be tried after leaving office.

What they’re saying: “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,” the group of lawyers and scholars wrote in the letter, shared with the Times.

  • “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,” they added.
  • "As scholars of constitutional law, we know there are many difficult questions of First Amendment law. But the permissibility of President Trump’s impeachment trial is not one of them."
  • "The First Amendment is no defense to the article of impeachment leveled against the former President, because the First Amendment does not apply in impeachment proceedings; because the president does not have a First Amendment right to incite a mob and then sit back and do nothing as the hostile mob invades the Capitol and terrorizes Congress; or because, in context, President Trump engaged in unlawful incitement."
"Accordingly, while we express no view here on the ultimate question of whether the Senate should convict President Trump and disqualify him from future office, we urge the Senate not to base its decision on the erroneous understanding of the First Amendment urged by President Trump’s lawyers."

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