What about the First Amendment? After all, free speech is a cornerstone of American democracy.
The wrinkle here is that free speech rights are not unlimited. The Supreme Court has made clear that speech that “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action” is not protected by the First Amendment. It’s illegal to possess pornographic images of children—despite the theoretical possibility of framing it as “speech.” And the Court has also held that employees of the federal government don’t have unlimited rights to speech on the job. They can be fired or reprimanded for speech that, if made in their private lives, would be constitutionally protected.
Trump’s lawyers don’t attempt to make an argument in their latest papers that Trump was acting as a private citizen when he made his speech on Jan. 6—surrounded by Secret Service on the federal payroll—about what actions should be taken on behalf of him as president so that he could retain his role as president. As a matter of logic—let alone lawyers’ ethical standards for avoiding frivolous arguments—that was a sensible call to make.