WASHINGTON – Claims by former President Donald J. Trump’s lawyers that his conduct around the January 6 Capitol rebellion is protected by the First Amendment are “legally frivolous” and should do nothing to stop the Senate from convicting him it in its impeachment trial, 144 leading First Amendment Lawyers and constitutional academics from across the political spectrum wrote in a letter that circulated on Friday.
Aiming at one of the main bases of Mr. Trump’s defense, lawyers argued that constitutional protections do not apply to an impeachment process, they never intended to protect a conduct like Mr. Trump’s and most likely would not protect him even in a criminal court.
“Although we are different from each other in our policy, we disagree on many issues of constitutional law and we take different approaches to understand the text, history and context of the Constitution, we all agree that any First Amendment defense raised by President Trump’s lawyers would be legally frivolous, ”wrote the group. “In other words, we all agree that the First Amendment does not prevent the Senate from condemning President Trump and disqualifying him from future office.”
Among the lawyers, academics and litigants who signed the letter, a copy of which was shared with The New York Times, were Floyd Abrams, who fought striking First Amendment cases in court; Steven G. Calabresi, founder of the conservative Federalist Society; Charles Fried, an attorney general of President Ronald Reagan; and prominent constitutional law scholars such as Laurence Tribe, Richard Primus and Martha L. Minow.
The public response came after 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 lawsuit that the House’s “incitement to insurrection” charge “violates the 45th president’s right to freedom of expression and thought” and that the First Amendment specifically protects Mr. Trump from being punished for his baseless allegations on widespread electoral fraud.
House impeachment managers argued that Trump’s false statements, claiming to have been the real 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, scholars of constitutional law presented three counter-arguments to the defense of the president’s freedom of expression that the Democrats responsible for the case should adopt at the trial.
First, they stated that the First Amendment, which aims to protect citizens from the government that limits their freedom of expression and other rights, has no real place in an impeachment trial. Senators are not determining whether Trump’s conduct was criminal, but his oath of office was violated enough to justify the prosecution and potential disqualification of the future post.
“As a result, asking whether President Trump was involved in First Amendment legal activities is totally wrong,” they wrote. “Regardless of whether President Trump’s conduct on and around January 6 was legal, he can be constitutionally convicted in an impeachment trial if the Senate determines that his behavior was a flagrant enough violation of his oath to constitute a ‘ serious crime or misdemeanor ‘under the Constitution. “
Furthermore, they argued, even if the First Amendment applied to an impeachment trial, it would do nothing to prevent the conviction, which has to do with the fact that Mr. Trump violated his oath, not whether he should have been allowed to say what you said.
“No reasonable academic or jurist could conclude that President Trump had the First Amendment’s right to incite a violent attack on the seat of the Legislative Branch, or sit and watch on television while Congress was terrorized and the Capitol ransacked,” they wrote.
Finally, they argued that there was an “extraordinarily strong argument” that the defense would even fail in a criminal trial because the evidence against Mr. Trump is probably strong enough to meet Supreme Court high standards to punish someone for inciting others to engage in illegal conduct.
Many of the signatories to Friday’s letter signed an earlier one contesting another key argument in Trump’s defense: the claim that the Senate has no jurisdiction to try a former president because the constitution does not explicitly grant that power.
The letter came when Trump’s legal team, which had been hastily reunited in the past few days after he fired his original impeachment lawyers, worked hard on Friday to speed up the case and prepare for the trial.
Mr. Schoen said that he and Mr. Castor had not yet learned anything about how the trial would work – including its timetable, how long the defense would have to present its arguments and the rules for the entry of evidence.
“I am in shock, we are starting on Tuesday and we do not have an agreement on how the resolutions will be presented,” Schoen said in a telephone interview. “We have no rules, no agenda, no deadline – there is no way it can be consistent with due process.”
Senator Chuck Schumer, a New York Democrat and majority leader, is due to present his proposed rules next week, just before the trial begins. Last year Senator Mitch McConnell of Kentucky, the main Republican and majority leader at the time, revealed the rules less than 24 hours before Trump’s first impeachment trial began.
Nicholas Fandos and Michael S. Schmidt reported from Washington, and Maggie Haberman of New York.