WASHINGTON – A key element of former President Donald Trump's defense is the argument that he can't be convicted by the Senate because the Jan. 6 speech that House prosecutors say incited the attack on the Capitol is protected by the Constitution’s First Amendment.
But many legal scholars dispute that the First Amendment’s guarantee of free speech applies to impeachment proceedings at all or that it protects Trump even if it does have some bearing on his impeachment.
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The First Amendment argument was part of a defense that sought to cast the impeachment as motivated by Democrats' hatred of Trump, but that also conceded he had lost the election — something the former president has never done.
The trial moved into a question-and-answer session Friday, with final arguments and a vote to follow, possibly as early as Saturday.
“There is no doubt Mr. Trump engaged in constitutionally protected speech that the House has improperly characterized as incitement of insurrection,” lawyer Michael van der Veen said Friday as Trump’s legal team argued its case in the Senate.
Trump's contention is that the Senate can't ignore the First Amendment's command that “Congress shall make no law...abridging the freedom of speech.”
In their written arguments in advance of the trial, Trump's lawyers wrote that “the Senate cannot blithely case aside the First Amendment” as well as Supreme Court decisions they claim support their case.
Yet legal scholars have suggested that it's Trump lawyers who are ignoring the Constitution. "The First Amendment does not apply in impeachment proceedings, so it cannot provide a defense for President Trump,” 144 professors including noted First Amendment lawyer Floyd Abrams and Reagan administration Supreme Court lawyer Charles Fried wrote last week.
The reason for this, they wrote, is that the First Amendment is invoked to argue that speech can't somehow be unlawful. Impeachment, though, is not always about conduct that violates the law.
And since it doesn’t take a criminal act to impeach a president, it doesn't matter whether Trump's words on Jan. 6 amount to incitement in violation of the law, they wrote.
Separately, Peter Keisler, who served as acting attorney general under President George W. Bush, wrote recently that even if Trump can't be prosecuted or somehow held liable for what he said, it doesn't matter. “It has no bearing on whether Congress can convict and disqualify a president for misconduct that consisted, in part, of odious speech that rapidly and foreseeably resulted in deadly violence,” Keisler wrote in The Atlantic with co-author Richard Bernstein.
There is more disagreement about whether Trump crossed the line into criminal incitement. The standard for legal liability is high under court decisions that reach back 50 years.
The legal issue is whether Trump in his speech incited violence that took place at the Capitol and whether he knew his words would have that effect.
That’s the standard the Supreme Court laid out in its 1969 decision in Brandenburg v. Ohio, which overturned the conviction of a Ku Klux Klan leader.
The House prosecutors say Trump's remarks, made near the White House, essentially lit the fuse that led directly to the deadly violence that took place at the other end of Pennsylvania Avenue. Trump's lawyers say the exhortation to “fight like hell” and other comments were figures of speech not meant to be taken literally.
“If that doesn't satisfy test, no one will ever be convicted under Brandenburg again,” George Washington University law professor Catherine Ross said on the National Constitution Center's “We The People” podcast. Ross also signed the scholars' letter.
Speaking on the same podcast, South Texas College of Law professor Josh Blackman said the distance between the White House and the Capitol, and the 30 to 45 minutes it might have taken to walk between the two buildings cuts against the argument that Trump imminently incited violence.
Trump's lawyers cited Blackman's writings in their brief.