February 18, 2021

Trump’s Frivolous First Amendment Defense Won’t Shield Him in a Criminal Case

At his impeachment trial for inciting insurrection, Donald Trump’s lawyers claimed that Trump’s exhortations to his followers before the attack on the Capitol were protected free speech under the First Amendment. But as 143 other constitutional law scholars from across the political spectrum and I collectively noted, that claim was “legally frivolous.” Moreover, the First Amendment will not protect Trump if he is charged with committing criminal offenses.

The First Amendment does not apply in an impeachment trial because a president (or former president) can be impeached even for lawful conduct if he abused his official power while in office. Impeachment is a political, not a legal, proceeding. As Alexander Hamilton wrote in Federalist No. 65, high crimes and misdemeanors “proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.”

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books by marjorie cohn
Drones and Targeted Killing The United States and Torture Rules of Disengagement Cowboy Republic: 6 Ways the Bush Gang Defied the Law Cameras in the Courtroom

about marjorie cohn

Marjorie Cohn is professor emerita at Thomas Jefferson School of Law where she taught for 25 years. The former president of the National Lawyers Guild and criminal defense attorney is a legal scholar and political analyst who writes books and articles, and lectures throughout the world about human rights, US foreign policy, and the contradiction between the two. She has testified before Congress and debated the legality of the war in Afghanistan at the prestigious Oxford Union. Her columns appear on Truthout, HuffPost, Salon, Jurist, Truthdig, Portside, CommonDreams and Consortium News, and she has provided commentary for CBS News, BBC, MSNBC, CNN, Fox News, NPR and Pacifica Radio. Learn more about Marjorie >>

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