Constitutional scholars pen letter saying Trump’s impeachment defence does not add up

They say citing the First Amendment "misses the point entirely"

Josh Marcus
San Francisco
Saturday 06 February 2021 19:49 GMT
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Former president Trump can’t use the First Amendment to shield himself from accountability during the upcoming impeachment trial, according to an open letter released on Friday from a group of nearly 150 constitutional scholars.

“The First Amendment is no bar to the Senate convicting former president Trump and disqualifying him from holding future office,” the letter insists. “The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for president Trump.”

Mr Trump’s lawyers have indicated he might argue during the Senate trial next week that his conduct leading up to the 6 January riot from his supporters is protected under the freedom of speech.

“Like all Americans, the 45th president is protected by the First Amendment. Indeed, he believes, and therefore avers, that the United States is unique on Earth in that its governing documents, the Constitution and Bill of Rights, specifically and intentionally protect unpopular speech from government retaliation,” they argued on Tuesday in their initial response to the impeachment articles. “If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”

The legal experts suggest this argument “misses the point entirely.”

Impeachment trials take on the trappings of a legal proceeding, but are fundamentally a political process, they write, so trying to apply specific legal precedent from free speech jurisprudence or anywhere else doesn’t matter. 

They note examples, like a judge being impeached for presiding over a trial while drunk, where someone can be removed for a clear violation that nonetheless isn’t itself illegal.

“Imagine a president who publicly announces, ‘I no longer promise to preserve the Constitution,’” they add in the letter. “Such a declaration would not be illegal — indeed, the First Amendment would almost certainly bar Congress from making it illegal — but the president could still be impeached for betraying the oath of office.”

They also argue that the First Amendment, even if it did apply here, is about stopping the government from barring various forms of speech — press, religion, assembly, petition — not shielding those already in it from the consequences of the actions they have encouraged with their words. Under free speech rules, people can still be punished for directly inciting lawless action, which is the essence of the charges against Mr Trump.

The trial hasn’t even begun, but the legal wrangling already has. The ex-president’s lawyers and advisers said on Friday he would not testify under oath before the Senate, writing off a request from Democrats as “games” during and “unconstitutional trial.”

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