144 Constitutional Lawyers Call Trump’s First
Amendment Defense ‘Legally Frivolous’
Taking aim at a key plank
of the former president’s impeachment defense, the lawyers argued that the
constitutional protections did not apply to an impeachment proceeding.
By Nicholas Fandos, Michael S. Schmidt and Maggie Haberman
- Feb.
5, 2021
WASHINGTON — Claims by former President
Donald J. Trump’s lawyers that his conduct around the Jan. 6 Capitol riot is
shielded by the First Amendment are “legally frivolous” and should do nothing
to stop the Senate from convicting him in his impeachment trial, 144 leading
First Amendment lawyers and constitutional scholars from across the political
spectrum wrote in a letter circulated on Friday.
Taking aim at one of the key planks of
Mr. Trump’s defense, the lawyers argued that the constitutional protections do
not apply to an impeachment proceeding, were never meant to protect conduct
like Mr. Trump’s anyway and would most likely fail to shield him even in a
criminal court.
“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 wrote. “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.
The public retort came after Mr.
Trump’s lawyers, Bruce L. Castor Jr. and David Schoen, indicated this week
that they
planned to use the First Amendment as part of their defense when the trial
opened on Tuesday. 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” and that the First Amendment
specifically protects Mr. Trump from being punished for his baseless claims
about widespread election fraud.
The House impeachment managers have
argued that Mr. Trump’s false statements claiming to have been the true winner
of the election, and his exhortations to his followers to go to the Capitol and
“fight like hell” to reverse the outcome, helped incite the attack.
In their letter, the constitutional law
scholars laid out three counterarguments to the president’s free-speech defense
that the Democrats prosecuting the case were expected to embrace at trial.
First, they asserted
that the First Amendment, which is meant to protect citizens from the
government limiting their free speech and other rights, has no real place in an
impeachment trial. Senators are not determining whether Mr. Trump’s conduct was
criminal, but whether it sufficiently violated his oath of office to warrant
conviction and potential disqualification from holding future office.
“As a result, 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.”
What is more, they argued, even if the
First Amendment did apply to an impeachment trial, it would do nothing to bar
conviction, which has to do with whether Mr. Trump violated his oath, not
whether he should be allowed to say what he said.
“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.
Finally, they contended that there was
an “extraordinarily strong argument” that the defense would even fail in a
criminal trial because the evidence against Mr. Trump is most likely strong
enough to meet the Supreme Court’s high bar for punishing someone for inciting
others to engage in unlawful conduct.
Many of the signatories to Friday’s
letter had signed on to a previous one pushing back on another key argument in
Mr. Trump’s defense: the
assertion that the Senate does not have jurisdiction to try a former president because the
Constitution does not explicitly grant it that power.
The letter emerged as Mr. Trump’s legal
team, which was hastily
pulled together in
recent days after he dismissed his original impeachment lawyers, worked
feverishly on Friday to get up to speed on the case and prepare for the trial.
Mr. Schoen said that
he and Mr. Castor had yet to learn anything about how the trial would operate —
including its schedule, how much time the defense would have to present its
arguments and the rules for entering evidence.
“I’m in shock we’re starting Tuesday and
have no agreement for how any resolutions will be put forward,” Mr. Schoen said
in a telephone interview. “We have no rules, no agenda, no time-frame — there
is no possible way this is consistent with due process.”
Senator Chuck Schumer, Democrat of New
York and the majority leader, is expected to lay out his proposed rules next
week, just before the trial begins. Last year, Senator Mitch McConnell of
Kentucky, the top Republican and the majority leader at the time, revealed the
rules less
than 24 hours before Mr. Trump’s first impeachment trial was set to begin.