Trump's impeachment defense destroyed by George W. Bush’s acting Attorney General
Donald Trump speaks to a large crowd at "An Address to Young America" an event hosted by Students for Trump and Turning Point Action. (Nuno21 /

Former President Donald Trump's impeachment defense was criticized by two conservative legal analysts -- one day before the start of his second Senate trial.

Federalist Society co-founder Peter Keisler, who served as acting attorney general during the George W. Bush administration, joined with former Scalia clerk Richard Bernstein to debunk Trump's defense in a new analysis published by The Atlantic.

"Front and center in former President Donald Trump's defense this week will be the argument that convicting him and disqualifying him from holding future office would violate his First Amendment rights—that it would essentially amount to punishing him for speaking his mind. His new lawyer, David Schoen, has warned that convicting Trump 'is putting at risk any passionate political speaker, which is against everything we believe in in this country.' That is wrong," the two conservative lawyers argued.

"Even if the First Amendment protected Trump from criminal and tort liability for his January 6 exhortation to the crowd that later stormed the Capitol, it has no bearing on whether Congress can convict and disqualify a president for misconduct that consisted, in part, of odious speech that rapidly and foreseeably resulted in deadly violence," they explained. "To start, let's examine how breathtaking Trump's argument is. His advocates are relying on the 1969 Supreme Court case Brandenburg v. Ohio, which held that the First Amendment prohibits criminal liability for advocating violence that is not imminent. According to their theory, Congress could not impeach, convict, remove, or disqualify a president who, like Clarence Brandenburg, spoke at a Ku Klux Klan rally in a white hood, advocated violence, used the N-word repeatedly in declaring that African Americans should be forcibly returned to Africa, and proclaimed that 'the Jew' should be sent to Israel."

"These supposed limitations on Congress's powers are not merely contrary to common sense; they are without any basis in law. Courts have held that none of those activities can constitutionally be criminalized. But as the University of Missouri law professor Frank Bowman exhaustively demonstrated in The Atlantic in 2019, the impeachment, conviction, removal, and disqualification powers of Congress do not require that the president, or any other federal official, has committed a crime," they explained.

The two also warned of what may occur if Trump is not convicted.

"There is no legal or other basis for inventing unfounded obstacles to conviction and disqualification by Congress of a president for such demagoguery and other misconduct. To the contrary, there are important reasons not to disable Congress in that way. History shows that republics can perish when they give a potential authoritarian a pass without serious consequences. As the wise Justice Robert Jackson explained in his famous dissent in Terminiello v. Chicago (1949), "The choice is not between order and liberty. It is between liberty with order and anarchy without either." To protect our republic, the Senate may and should convict and disqualify a president whose official misconduct included odious speech that rapidly and foreseeably caused lethal violence," they wrote.

Read the full analysis.