Updated: February 13, 2021 9:15:24 am
Written by Peter Baker and Nicholas Fandos
Former President Donald Trump’s legal team mounted a combative defense Friday focused more on assailing Democrats for “hypocrisy” and “hatred” than justifying Trump’s own monthslong effort to overturn a democratic election that culminated in last month’s deadly assault on the Capitol.
After days of powerful video footage showing a mob of Trump supporters beating police officers, chasing lawmakers and threatening to kill the vice president and House speaker, Trump’s lawyers denied that he had incited what they called a “small group” that turned violent. Instead, they tried to turn the tables by calling out Democrats for their own language, which they deemed just as incendiary as Trump’s.
In so doing, the former president’s lawyers went after not just the House Democrats serving as managers, or prosecutors, in the Senate impeachment trial, but half of the jurors sitting in front of them in the chamber. A rat-a-tat montage of video clips played by the Trump team showed nearly every Democratic senator as well as President Joe Biden and Vice President Kamala Harris using the word “fight” or the phrase “fight like hell” just as Trump did at a rally of supporters on Jan. 6 just before the siege of the Capitol.
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“Suddenly, the word ‘fight’ is off limits?” said Michael van der Veen, one of the lawyers hurriedly hired in recent days to defend Trump. “Spare us the hypocrisy and false indignation. It’s a term that’s used over and over and over again by politicians on both sides of the aisle. And, of course, the Democrat House managers know that the word ‘fight’ has been used figuratively in political speech forever.”
To emphasize the point, the Trump team played some of the same clips four or five times in less than three hours as some of the Democratic senators shook their heads and at least one of their Republican colleagues laughed appreciatively. The lawyers argued that the trial was “shameful” and “a deliberate attempt by the Democrat Party to smear, censor and cancel” an opponent and then rested their case without using even a quarter of the 16 hours allotted to the former president’s defense.
In the process, they tried to effectively narrow the prosecution’s “incitement of insurrection” case as if it centered only on their client’s use of that one phrase in that one speech instead of the relentless campaign that Trump waged since last summer to discredit an election he would eventually lose and galvanize his supporters to help him cling to power.
“They really didn’t address the facts of the case at all,” said Rep. Jamie Raskin, D-Md. and the lead impeachment manager. “There were a couple propaganda reels about Democratic politicians that would be excluded in any court in the land. They talk about the rules of evidence — all of that was totally irrelevant to the case before us.”
After the Trump team’s abbreviated defense, the senators posed their own questions, generally using their queries to score political points. The questions, a total of 28 submitted in writing and read by a clerk, suggested that most Republicans remained likely to vote to acquit Trump when the Senate reconvenes for final arguments at 10 a.m. Saturday, blocking the two-thirds supermajority required by the Constitution for conviction.
Some of the few Republicans thought to be open to conviction, including Sens. Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska, grilled the lawyers about what Trump knew and when he knew it during the attack. The managers have argued that it was not just the president’s words and actions in advance of the attack that betrayed his oath, but his failure to act more assertively to stop his supporters after it started.
Responding to the senators, the defense lawyers pointed to mildly worded messages and a video that Trump posted on Twitter after the building was stormed calling on his supporters not to use violence while still endorsing their cause and telling them that he loved them. The managers repeated that Trump never made a strong, explicit call on the rioters to halt the attack, nor did he send help.
Romney and Sen. Bill Cassidy, R-La., zeroed in on Trump’s failure to exhibit any concern for his own vice president, Mike Pence, who was targeted for death by the former president’s supporters because he refused to try to block finalization of the election. Even after Pence was evacuated from the Senate chamber that day, Trump attacked him on Twitter, saying that “Mike Pence didn’t have the courage to do what should have been done.”
Van der Veen told the senators that “at no point was the president informed that the vice president was in any danger.” But in fact, Sen. Tommy Tuberville, R-Ala., told reporters this week that he spoke by telephone with Trump during the attack and told him that Pence had been rushed out of the chamber. And officials have said that Trump never called Pence to check on his safety and did not speak with him for days.
The defense team struggled to avoid directly addressing what managers called Trump’s “big lie” that the election was stolen, which led his supporters to invade the Capitol to try to stop Congress from counting the Electoral College votes ratifying the result. Sen. Bernie Sanders of Vermont, an independent who caucuses with the Democrats, challenged Trump’s lawyers to say whether they believe he actually won the election.
“My judgment?” Van der Veen replied derisively and then demanded: “Who asked that?”
“I did,” Sanders called out from his seat.
“My judgment’s irrelevant in this proceeding,” van der Veen said, prompting an eruption from Democratic senators. He repeated that “it’s irrelevant” to the question of whether Trump incited the riot.
Senate Democrats dismissed the defense’s efforts to equate Trump’s actions with Democratic speeches. “They’re trying to draw a dangerous and distorted equivalence,” Sen. Richard Blumenthal, D-Conn., told reporters during a break in the trial. “I think it is plainly a distraction from Donald Trump inviting the mob to Washington.”
But for Republicans looking for reasons to acquit Trump, the defense was more than enough. “The president’s lawyers blew the House managers’ case out of the water,” said Sen. Ron Johnson, R-Wis.
Even Murkowski, who called on Trump to resign after the Capitol siege, said the defense team was “more on their game” than during the trial’s opening day this week, although by day’s end, she indicated to a reporter she was agonizing over the decision.
“It’s been five weeks — less than five weeks — since an event that shook the very core the very foundation of our democracy,” she said. “And we’ve had a lot to process since then.”
During the question period, senators closely watched for clues about where their colleagues stood. Although most lawmakers still guessed that only a handful of Republicans would vote to convict, an additional group of Republicans, including Sen. Mitch McConnell of Kentucky, the minority leader, have said almost nothing to colleagues about the unfolding trial in private or during daily luncheons before it convenes, prompting speculation that they could be preparing to break from the party.
The managers need 17 Republicans to join all 50 Democrats to reach the two-thirds required for conviction. While Trump can no longer be removed from office because his term has ended, he could be barred from ever seeking public office again.
The former president had trouble recruiting a legal team to defend him. The lawyers who represented him last year during his first impeachment trial did not come back for this one, and the set of lawyers he initially hired for this proceeding backed out in disagreement over strategy. Bruce Castor, the leader of this third set, was widely criticized for his preliminary presentation Tuesday, including reportedly by Trump.
Castor and David Schoen were largely supplanted Friday by van der Veen, who has no long history with the president and in fact was reported to have once called Trump a “crook” with an expletive, a statement he has denied. Just last year, van der Veen represented a client suing Trump over moves that might limit mail-in voting and accused the president of making claims with “no evidence.”
But van der Veen on Friday offered the sort of aggressive performance that Trump prefers from his representatives as he accused the other side of “doctoring the evidence” with “manipulated video,” all to promote “a preposterous and monstrous lie” that the former president encouraged violence.
A personal injury lawyer whose Philadelphia law firm solicits slip-and-fall clients on the radio and whose website boasts of winning judgments stemming from auto accidents and one case “involving a dog bite,” van der Veen proceeded to lecture Raskin, who taught constitutional law at American University for more than 25 years, about the Constitution. The managers’ arguments, van der Veen said, were “less than I would expect from a first-year law student.”
He and his colleagues offered little new information about the president’s conduct, but argued that he was exercising his free-speech rights in his fiery address to a rally before supporters broke into the Capitol. The lawyers leaned heavily on Trump’s single use of the word “peacefully” as he urged backers to march to the Capitol while minimizing the 20 times he used the word “fight.”
“No thinking person could seriously believe that the president’s Jan. 6 speech on the Ellipse was in any way an incitement to violence or insurrection,” van der Veen said. “The suggestion is patently absurd on its face. Nothing in the text could ever be construed as encouraging, condoning or inciting unlawful activity of any kind.”
Sensitive to the charge that Trump endangered police officers, who were beaten and in one case killed during the assault, the lawyers played a series of video clips in which he called himself a “law and order president” along with images of anti-racism protests that turned violent last summer.
They likewise showed video clips of Democrats objecting to Electoral College votes in past years when Republicans won, including Raskin in 2017 when Trump’s victory was sealed, comparing them to Trump’s criticism of the 2020 election. At the same time, those videos also showed Biden, then vice president, gaveling those protests out of order.
Stacey Plaskett, a Democratic delegate from the Virgin Islands and one of the managers, objected that many of the faces singled out in the videos of Democratic politicians and street protesters were Black. “It was not lost on me so many of them were people of color and women, Black women,” she said. “Black women like myself who are sick and tired of being sick and tired for our children.”
The defense lawyers contended that Democrats were pursuing Trump out of personal and partisan animosity, using the word “hatred” 15 times during their formal presentation, and they cast the trial as an effort to suppress a political opponent and his supporters.
“It is about canceling 75 million Trump voters and criminalizing political viewpoints,” Castor said. “That’s what this trial is really about. It is the only existential issue before us. It asks for constitutional cancel culture to take over in the United States Senate. Are we going to allow canceling and banning and silencing to be sanctioned in this body?”
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