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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