One of former President Donald Trump's major legal defenses to the impeachment charge of "incitement of insurrection" is, in effect, that any false statements of widespread fraud he may have made were protected by the First Amendment. As asserted by his Senate brief: "[l]ike all Americans, the 45th President is protected by the First Amendment"; "[t]he Article of Impeachment violates the 45th President's right to free speech[.]"

First, the First Amendment does not protect anyone using speech to incite an insurrection. Second, the Constitution itself refutes Trump's argument that a president has the same First Amendment right to free speech as all other Americans. The Constitution imposes on the president a unique duty: to "faithfully execute the office of the President of the United States" (emphasis added), Art. II, Sec. 1, Cl. 8. A critical element of the president's duty to faithfully execute his office is to be honest in carrying it out.