Nearly 150 constitutional scholars sign letter dismantling Trump's 'First Amendment' impeachment defense

Nearly 150 constitutional scholars sign letter dismantling Trump's 'First Amendment' impeachment defense
Image via the White House.

Former President Donald Trump is just days away from his second impeachment trial -- and nearly 150 U.S. Constitutional scholars are already pushing back against his defense.

According to Law & Crime, on Friday, Feb. 5, a host of legal professors and First Amendment litigators penned a seven-page letter arguing why the First Amendment does not apply when it comes to the deadly insurrection on the U.S. Capitol that Trump is being charged for inciting. Although the supporters of the letter did note that they do have differences in legal and political opinions, their stance on the Constitution and upholding the law are the same.

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

The letter comes just days after Trump's legal team filed its official response on Tuesday, Feb. 2. It read, "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.

The filing also noted, "If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all."

The scholars went on to break down the extent of the First Amendment and how a defense of it would normally be laid out in court.

"The First Amendment limits the government's ability to make it unlawful to engage in speech, practice a religion, peaceably assemble, or petition the government," the letter notes [emphasis in original]. "Thus, when lawyers say that a defendant established a First Amendment defense in a court case, what they mean is that the defendant demonstrated that the government could not make their conduct unlawful."

"[A]sking whether president Trump was engaged in lawful First Amendment activity misses the point entirely," the letter continues. "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. If so, he can be convicted and disqualified from future office regardless of whether he would have a First Amendment defense in a subsequent criminal prosecution."

Despite Trump's defense, the letter also argues the difference between freedom of speech under normal instances compared to what they described as a "willful dereliction of duty." The letter noted, "The First Amendment protects the freedoms of speech, press, religion, assembly, and petition; it does not grant the president the freedom to engage in a willful dereliction of duty."

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