Trump's lawyer argues Dem. Eric Swalwell cannot sue him for inciting an insurrection because January 6 speech and bid to overturn the election was protected by free speech and his position as president

 Former President Donald Trump's lawyer argued in a new filing that the speech he delivered on January 6 before the MAGA riot was protected by the First Amendment and he had 'absolute immunity' as president to contest the election.  

The claim filed in D.C. District Court was in response to a lawsuit from Democratic Rep. Eric Swalwell, one of the House's impeachment managers, seeking to hold Trump legally accountable for inciting an insurrection after Democrats were unable to get an impeachment conviction in the U.S. Senate. 

Trump's lawyer said that the president's bully pulpit message at the 'Save America' rally was a constitutionally protected presidential act, according to CNN, which first reported on the new filing. 

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Former President Donald Trump, seen departing Trump Tower Tuesday, had his lawyer argue that the speech he delivered on January 6 before the MAGA riot was protected by the First Amendment and he had 'absolute immunity' as president to contest the election

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Rep. Eric Swalwell, one of the Democratic House impeachment managers, is suing former President Donald Trump for his role in the MAGA riot (pictured), using a terrorism law that claims Trump's incitement inflicted emotional damage on members of Congress 

'While holding that office, former President Trump was free to advocate for the appointment and certification of electors, just as he was entitled to advocate for the passage or defeat of a constitutional amendment, or the reconsideration of a congressional act over his veto even though the President does not directly participate in those congressional acts,' Trump's attorney Jesse Binnall wrote. 

'The claims against former President Trump directly contravene the absolute immunity conveyed on the President by the Constitution as a key principle of separation of powers,' Binnall continued.   

The lawyer also argued that Swalwell can't sue Trump because the Senate already voted down impeachment charges. 

Fifty-seven senators said Trump was guilty on the one impeachment charge - inciting an insurrection - while another 43 said 'not guilty,' but the threshold for conviction is 67 votes.  

The filing also defended Trump questioning the election the results, comparing it to comments made by 2018 Georgia gubernatorial candidate Stacey Abrams, after she lost her election to now Gov. Brian Kemp. 

Trump continues to falsely claim the election was stolen from him. 

Swalwell, who also names Rudy Giuliani, Donald Trump Jr. and Republican Rep. Mo Brooks in his suit, was the second Democratic congressman to sue the ex-president over the January 6 riot. 

Rep. Bennie Thompson also did. 

Both lawsuits cite a civil rights law that was used to counter intimidation the Ku Klux Klan used on election officials, but Swalwell's also says Trump and the others broke Washington, D.C. laws including an anti-terrorism act by inciting the riot and inflicting emotional damage on the members of Congress inside the Capitol during the attack. 

'The Defendants, in short, convinced the mob that something was occurring that - if actually true - might indeed justify violence, and then sent that mob to the Capitol with violence-laced calls for immediate action,' the lawsuit said. 

While Trump was let off the hook by the U.S. Senate, Senate Minority Leader Mitch McConnell, the chamber's top Republican, said after the ex-president's acquittal that he believed Trump may still be in legal jeopardy, bringing up the criminal justice system and civil litigation during a floor speech after the Senate's impeachment vote.  

 'Presidents are not immune from being accountable by either one,' McConnell said then.