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© Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images Impeachment managers walking to deliver the article of impeachment for former President Donald Trump on Jan. 25th, 2021. Photo By Tom Williams/CQ-Roll Call, Inc via Getty Images

  • Trump’s defense team on Tuesday filed their first brief about the former president’s upcoming impeachment trial.
  • His lawyers argue that Trump being put on trial after leaving office is unconstitutional. 
  • They also claim that Trump’s speech before the Capitol insurrection is protected by the First Amendment. 
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Former President Donald Trump’s team of lawyers argue in a 14-page brief filed Tuesday that trying Trump after he has left office is unconstitutional and that his speech prior to the Capitol riot is protected under the First Amendment. 

Trump’s attorneys, Bruce L. Castor Jr. and David Schoen, claim in the brief that it’s “moot” to try to convict Trump for incitment of insurrection “because the Senate lacks jurisdiction to remove from office a man who does not hold office.” 

Earlier on Tuesday, the House impeachment managers filed their first brief arguing the case for convicting Trump on a charge of inciting the January 6 insurrection.

In the House’s filing, impeachment managers said that “in a grievous betrayal of his Oath of Office, [Trump] incited a violent mob to attack the United States Capitol during the Joint Session, thus impeding Congress’s confirmation of Joseph R. Biden, Jr. as the winner of the presidential election.”

The House’s impeachment managers directly refuted the arguments from Trump’s team about the constitutionality of the case, saying that “there is no ‘January Exception’ to impeachment or any other provision of the Constitution.”

Trump has for months falsely insisted that the election was fraudulent and stolen from him. His lawyers say that Trump had a right to express his opinion that the results were “suspect” and so is protected by the First Amendment’s right to free speech. 

“Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false. Like all Americans, the 45th President is protected by the First Amendment,” the lawyers say.

Notably, courts rejected nearly 60 post-election lawsuits filed on behalf of Trump and his allies aiming to halt the counting of votes, get ballots thrown out, or invalidate the presidential election results in multiple states. Many of the false claims of voter and election fraud that Trump pushed were not just a matter of opinion, but have no evidence backing them up or have been definitively disproven by courts or officials. 

Trump also told attendees of his Save America Rally on January that “if you don’t fight like hell, you’re not going to have a country anymore.” His defense team says that his words were not related to any specific action he wanted the protesters to take at the Capitol and was “clearly about the need to fight for election security in general.” 

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