Trump lawyers to argue his speech before Capitol riot is protected by First Amendment

House impeachment managers said in a pre-trial brief filed on Tuesday that former President Donald Trump “summoned a mob to Washington, exhorted them into a frenzy and aimed them like a loaded cannon down Pennsylvania Avenue,” inciting the Jan. 6 attack on the Capitol.

The managers said Trump is “personally responsible” for the Capitol riot, where far-right extremists — many armed with weapons and screaming threats of violence — stormed through the building and forced U.S. representatives and senators to delay the process of confirming President Joe Biden’s election victory.

Trump’s lawyers, however, argued in their 14-page filing that Trump’s speech before the riot is protected by the First Amendment and that he’s permitted to express “his opinion that the election results were suspect.”

The First Amendment guarantees the right of freedom of speech without government regulation or interference. The Supreme Court, however, has acknowledged that the First Amendment doesn’t protect some speech that “may cause a breach of the peace or cause violence.”

Trump’s lawyers also called for the impeachment case to be dismissed, writing that it’s “moot” because “the 45th president cannot be removed from an office he no longer occupies.” They also said that the Senate doesn’t have the jurisdiction to prevent Trump from running again for federal office.

The Constitution states that the Senate can hold a vote on whether a convicted official “shall be disqualified from again holding an office of public trust under the United States.”

House impeachment managers argued that the Constitution gives the Senate “sole power to try all impeachments” and that “this clause contains no reservation or limitation.”

“There is no ‘January exception’ to the Constitution that allows a president to organize a coup or incite an armed insurrection in his final weeks in office,” the managers said in a statement.

The U.S. House of Representatives impeached Trump on Jan. 13 on the charge of “incitement of insurrection” for his role in the Capitol siege, the first time a U.S. president has been impeached twice.

Before the riot, Trump spoke outside the White House at what he billed as a “Save America Rally,” where he continued to claim that the election was stolen from him and encouraged his supporters to march to Capitol Hill.

“I think one of our great achievements will be election security, because nobody, until I came along, had any idea how corrupt our elections were,” Trump said during the rally. “...But I said something is wrong here, something is really wrong, can’t have happened, and we fight. We fight like hell, and if you don’t fight like hell you’re not going to have a country anymore.”

Trump’s lawyers denied that “the phrase ‘if you don’t fight like hell you’re not going to have a country anymore” had anything to do with the attack on the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech.”

Following Trump’s speech, thousands of his supporters marched to the Capitol where the mostly white mob tore through barricades and smashed windows as they charged and desecrated the building. Five people died, including a Capitol Police officer, and in the weeks that followed dozens of those who stormed the Capitol have been charged with federal crimes.

Lawmakers agreed to delay the impeachment trial, which is expected to begin on Feb. 9, giving Trump’s defense team and House impeachment managers time to prepare. The delay also allows the Senate to process more of Biden’s Cabinet nominations.

Democrats, who have a majority in the Senate with a 50-50 split and Vice President Kamala Harris as the tie-breaking vote, will need at least 17 Republicans to vote with them in order to convict Trump.

All but five Republican voted for an effort last week spearheaded by Sen. Rand Paul, a Kentucky Republican, who argued that it was unconstitutional to hold a trial for a former president. Although the 55-45 vote dismissed Paul’s objection and cleared the way for the trial to continue as planned, it suggested the Senate likely won’t have enough votes to convict Trump.

This story was originally published February 2, 2021 at 4:37 PM with the headline "Trump lawyers to argue his speech before Capitol riot is protected by First Amendment."