Steve Coll in The New Yorker:
When Donald Trump’s second impeachment trial opens this week, the prosecution and defense will spend much time debating whether it is unconstitutional to try a President no longer in office—a dodge Republicans have seized upon to avoid taking responsibility for Trump’s actions on January 6th and to avoid his wrath. With conviction now unlikely, the trial offers Democratic senators and the handful of open Trump skeptics among the Republicans a chance to engrave Trump’s assault on the Constitution into the historical record. But the trial will also be a forward-looking political forum—a preview of how January 6th will figure in electoral competition between Democrats and Republicans, and among Republicans, in the months ahead.
Trump’s lawyers and acolytes have already made plain some of the political ground they prefer to fight on: the defense of the First Amendment. Impeaching Trump for mobilizing the January protesters with false claims about election rigging “is a very, very dangerous road to take with respect to the First Amendment, putting at risk any passionate political speaker,” one of Trump’s impeachment lawyers, David Schoen, told Sean Hannity on Fox News last week. The initial fourteen-page brief that Schoen and his co-counsel Bruce Castor filed in Trump’s defense mentions the First Amendment five times, aligning its arguments with the “cancel culture” protestations so prominent in conservative discourse: “If the First Amendment protected only speech the government deemed popular in current American culture, it would be no protection at all.”
As a defense against the House’s impeachment charge, however, the legal protections afforded by the First Amendment are largely irrelevant.
More here.