First Amendment Legal Experts Debunk Trump's Impeachment Defense

A group of legal scholars poked a hole in one of the claims made by former President Donald Trump's defense lawyers for his upcoming impeachment trial, stating the argument Trump's behavior before the deadly Jan. 6 attack on the Capitol has no legal standing.

A letter released Friday by 144 First Amendment attorneys and constitutional experts representing a broad base of political ideologies termed the idea Trump's conduct on Jan. 6 is somehow shielded under the First Amendment to be "legally frivolous," according to a report in the New York Times.

"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."

Impeachment managers in the House of Representatives have claimed Trump's false claims about the validity of the Nov. 3 election results as well as his Jan. 6 call at a "Stop the Steal" rally for his followers to go to the Capitol and "fight like hell" to reverse the certification of the Electoral College results incited the violence that day, thus voiding First Amendment protections of free speech.

A conviction is unlikely, regardless of the validity of the defense presented. The prosecution needs a supermajority of the Senate members – who serve as the jury in an impeachment trial – to vote to convict. But with 35 Republican senators publicly declaring they will not vote to convict, according to USA Today, the threshold of 67 votes is already unattainable before the trial even opens next week.

Trump's lawyers declared earlier this week in their first response to the impeachment the statements made by the former President were protected speech under the First Amendment. Another constitutional argument supported by 45 senators in a procedural vote is the impeachment itself is unconstitutional because Trump is no longer in office.