WASHINGTON – Former President Donald J. Trump’s lawyers’ claims that his actions surrounding the January 6 Capitol riot are protected by the First Amendment are “legally frivolous” and should do nothing to deter the Senate from convicting him of his indictment, 144 Advocates and constitutionalists from across the political spectrum of the first amendment wrote in a letter Friday.
In view of one of the most important boards of mr. Trump’s defense, the advocates argued, that constitutional protection does not apply to an indictment, was never intended to conduct such as Mr. Trump’s protection does not and would probably not succeed in protecting him a criminal court.
‘Although we differ in our politics, do not agree on many questions about constitutional law and follow different approaches to understanding the text, history and context of the Constitution, we all agree that any defense of the first amendment which is raised by President Trump’s lawyers will be legal. frivolous, ”the group wrote. “In other words, we all agree that the First Amendment does not prevent the Senate from condemning President Trump and disqualifying him from holding the future office.”
Among the attorneys, scholars, and litigants who signed the letter, a copy of which was shared with The New York Times, was Floyd Abrams, who was suing for the first amendment in court; Steven G. Calabresi, a founder of the Conservative Federalist Society; Charles Fried, an attorney general under President Ronald Reagan; and leading constitutionalists such as Laurence Tribe, Richard Primus and Martha L. Minow.
The public retaliation comes after Trump’s attorneys, Bruce L. Castor Jr. and David Schoen, indicated this week that they intended to use the First Amendment as part of their defense when the trial opened on Tuesday. They argued in a written statement that the charge of “inciting the uprising” of the House “violates the 45th president’s right to free speech and thought” and that the First Amendment specifically protects Mr. Trump is protected because of his baseless allegations of widespread electoral fraud.
The House’s accusation leaders argued that Trump’s false statements claimed he was the true winner of the election, and his admonitions to his followers to go to the Capitol and ‘fight like hell’ to reverse the result, contributed to inciting the attack.
In their letter, the constitutionalists set out three counter-arguments for the president’s freedom of speech that the Democrats who are prosecuting the case would accept during the trial.
First, they claim that the First Amendment, which is intended to protect citizens from the government restricting their freedom of speech and other rights, has no real place in a process of indictment. Senators do not determine whether Trump’s actions were criminal, but whether they violated his oath of office sufficiently to justify conviction and possible incompetence to hold future office.
“As a result, it completely misses the question,” they wrote. “Regardless of whether President Trump’s conduct on and around January 6 was legal, he could be found guilty in a prosecution trial if the Senate determines that his conduct was a sufficiently serious violation of his oath of office for a ‘high crime or misconduct.’ to be. under the Constitution. ”
What’s more, they argued, even if the first amendment applied to an indictment, it would do nothing to thwart a conviction, which has to do with the question of whether Mr. Trump has violated his oath and not whether he should be allowed to say what he said.
“No reasonable scholar or jurist could conclude that President Trump had a right to the first amendment to incite a violent attack on the seat of the legislature, or to sit back and watch television. “Look at how Congress is being terrorized and the Capitol is being fired,” they wrote. .
Finally, they claim 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 the Supreme Court’s high court to punish someone for encouraging others to get involved. in illegal conduct.
Many of the signatories of Friday’s letter signed with a previous one who made another important argument in defense of Mr. Trump pushed back: the allegation that the Senate does not have the jurisdiction to try a former president because the Constitution does not explicitly give him the power. .
The letter appeared as Mr. Trump’s legal team, which has been hastily put together over the past few days after dismissing his original indictment, worked feverishly Friday to set up the case quickly and prepare for the trial.
Mr. Schoen said that he and mr. Castor had yet to learn anything about how the trial would work – including the schedule, how much time the defense would have to present its arguments and the rules for entering evidence.
“I am shocked that we are starting on Tuesday and do not have an agreement on how any decisions will be proposed,” Schoen said in a telephone interview. “We have no rules, no agenda, no time frame – there is no possible way to match it with the proper process.”
New York Democrat Senator Chuck Schumer and the majority leader are expected to set out his proposed rules next week, just before the trial begins. Last year, Senator Mitch McConnell of Kentucky, the then top Republican and majority leader, unveiled the rules less than 24 hours before Mr. Trump’s first indictment would begin.
Nicholas Fandos and Michael S. Schmidt reported from Washington, and Maggie Haberman of New York.