WASHINGTON – Donald Trump’s impeachment team defended him Friday by flatly denying he encouraged the deadly Jan. 6 attack on Congress, insisting that as a “law and order” president he abhorred mob violence.
They sought to puncture the House manager’s case that he incited the attack by reconstructing the timeline of an attack that began even before Trump finished riling up the crowd that would soon swarm the Capitol.
The defense rested its case after just three hours, with Sen. Ted Cruz ducking repeatedly into their meeting room to help the lawyers strategize.
“To claim that the president in any way wished, desired or encouraged lawless or violent behavior is a preposterous and monstrous lie,” and “patently absurd,” said Michael van der Veen, one of Trump’s lawyers.
“This unprecedented effort is not about Democrats opposing political violence. It is about Democrats trying to disqualify their political opposition. It is constitutional cancel culture,” he said. “History will record this shameful effort as a deliberate attempt by the Democrat party to smear, censor and cancel not just President Trump, but the 75 million Americans who voted for him.”
For 12 hours of trial over the previous two days, House prosecutors showed clip after clip of Trump urging supporters glorifying road rage attacks on Biden backers, promising to pay legal bills for rallygoers who accosted protesters, and fueling outrage with false claims about a stolen election.
Just before the attack, Trump told supporters that “if you don’t fight like hell, you’re not going to have a country anymore.”
The defense insisted he was merely exercising free speech rights when he claimed, for months, that the election was rife with fraud and exhorted supporters to “fight,” a term they downplayed as a common figure of speech – protected speech – while glossing past the actual violence that ensued after Trump's bellicose rhetoric.
To illustrate that point, the defense played a 9-minute montage of Democrats and some celebrities using the word “fight,” set to heart-throbbing music. Later they showed a shorter version focused on the phrase “fight like hell.”
(Trump lawyers accused House Democrats of misleading edits of videos, drawing cries of hypocrisy after the defense played their own video enhanced with a soundtrack.)
The clips included most Senate Democrats, House impeachment managers, and President Joe Biden and Vice President Kamala Harris, mostly speaking in a political sense but in some instances, with suggestions of physical violence.
“Please stop the hypocrisy,” said David Schoen, another defense lawyer.
The prosecution side anticipated that line of argument.
They had drawn a distinction between heated rhetoric, and heated rhetoric to an angry crowd fed lies about a stolen election and primed for violence, primed by a president who glorified violence as patriotic when done to promote his aims – rhetoric delivered just before that crowd attacked the Capitol.
Thousands converged on the citadel of American democracy, climbing through windows they’d bashed in with stolen riot shields, and sending lawmakers into hiding.
“Nothing in the text (of Trump’s Jan. 6 rally speech) could ever be construed as encouraging condoning or enticing unlawful activity of any kind,” van der Veen argued. “Far from promoting insurrection against the United States, the president’s remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically.”
Sen. Richard Blumenthal, D-Conn., panned the defense for “trying to draw a false and dangerous equivalency” between Trump’s incitement, which occurred just before violence broke out, and rhetoric not used in the midst of a combustible situation.
Sen. Mazie Hirono, D-Hawaii, called it “pathetic and amateurish” for Trump’s team to paint his words as innocuous, “an alternative universe recitation of what was really going on in that crowd.”
One especially potent line of argument from the defense involved the timeline of events the day of the riot.
Indictments and arrest documents show that many rioters came to Washington eager for a melee. Trump’s team argued the attack was pre-planned, and already underway during Trump’s 70-minute speech a mile away.
—Trump spoke from roughly noon to 1:10 p.m. Eastern Time.
— By 11:15 a.m., some of his supporters had already gathered at the reflecting pool at the foot of Capitol Hill.
— Attackers overran bicycle-type barriers and Capitol Police at 12:49 p.m.
— Just as Trump’s speech was ending, the Capitol Police chief called the House and Senate sergeants at arms seeking reinforcements, including National Guard.
“The criminals at the Capitol weren’t there at the Ellipse to even hear the president’s words,” defense lawyer Bruce Castor said. “The Jan. 6 speech did not cause the riots. The president did not cause the riots.”
“The president’s lawyers blew the House managers’ case out of the water,” said Sen. Ron Johnson, R-Wis.
House managers showed that Trump had spent weeks spreading the “big lie” that the election had been stolen, assembling the crowd and priming supporters to interfere in the certification of Biden’s victory to “stop the steal.”
Trump issued his first of many calls to action on Jan. 6 a full 18 days earlier, calling it a “wild” and historic day.
“These insurgence were planning armed violence... because he had been priming them, because he had been amping them up,” Rep. Joaquin Castro, D-Texas, told the Senate in answer to the first question in a four-hour question period Friday afternoon. “That mob didn’t come out of thin air. ... You tell somebody that an election victory is being stolen from them, that’s a combustible situation.”
In what Democrats described as an exercise in “whataboutism,” the defense showed footage from Jan. 6, 2017, when Rep. Sheila Jackson Lee of Houston and others, including the lead House manager in this trial, Rep. Jamie Raskin of Maryland, voicing objections as Congress certified Trump’s victory over Hillary Clinton.
Biden himself, nearing the end of his term as vice president, was presiding, just as Mike Pence presided on Jan. 6, 2021.
“There is no debate in order,” Biden declared over and over, banging his gavel and cutting off the House members.
In 2017, no senators joined the objections. That precluded debate and votes on state-certified results. And Hillary Clinton had conceded, unlike Trump, who refused to accept defeat or promise a peaceful transition of power.
In 2021, Cruz and Josh Hawley of Missouri led objections that triggered hours of debate. More than half the Republicans in Congress – eight senators and 139 House members, including all but seven of 23 Texas Republicans – voted to nullify millions of votes that day.
The defense team also showed footage of prominent Democrats musing about punching Trump, or joking about killing opponents, hoping to inure the Senate jury to Trump’s inflammatory language.
Said van der Veen, “This is not ‘whataboutism.’ ... I am showing you this to make the point that all political speech must be protected.”
The First Amendment defense was another central argument for the defense, which asserted that everything Trump said the day of the riot, and beforehand, amounted to protected political speech.
House managers noted that presidents swear to defend the Constitution from all enemies, foreign and domestic.
The First Amendment protects citizens from government censorship on political speech. It is not a shield for absolutely everything said verbally, including incitements of violence, let alone an attack on Congress and American democracy.
“This case is much worse than someone who shouted fire in a crowded theater,” Raskin told senators earlier in the trial, invoking a formulation from Justice Oliver Wendell Holmes Jr.
“It’s more like a case where the town fire chief, who is paid to put out fires, sends a mob, not to yell fire in a crowded theater but to actually set the theater on fire. And who then, when the fire alarms go off and the calls start flooding into the fire department, does nothing but sit back, encourage the mob to continue its rampage and watch the fire spread on TV,” he said.
House managers spent two days showing graphic footage of of the attack, harping on Trump’s threats against Pence if he refused to overturn Biden’s victory.
Some in the mob chanted “Hang Mike Pence!” and evidence uncovered by the FBI shows that some rioters genuinely wanted to find and kill Pence and Speaker Nancy Pelosi.
Given that evidence, the defense argument that Trump was merely employing standard political rhetoric fell flat with Democrats.
“I don’t think it’s apples to apples at all,” said Sen. Chris Coons, D-Del., pointing out that even if Trump didn’t intend to incite violence, once the siege was underway he ignored the peril faced by his own vice president and others.
Somewhat to the surprise of prosecutors, Trump’s team took the substantive allegations head-on, though they also argued that the trial is unconstitutional because Trump is now a former president.
The House impeached Trump two weeks before he left office and the managers argued that under the defense theory, a president desperate to cling to power at the end of his term effectively gets a free pass to violate the Constitution with impunity.
On Tuesday, the Senate agreed that a former president can be impeached or convicted for high crimes and misdemeanors committed in office. The vote was 56-44, with six Republicans joining all Democrats.
Cruz, who voted that the Senate no longer has jurisdiction over Trump because he is an ex-president, nonetheless argued in an op-ed afterward that Congress’ impeachment power does cover ex-presidents; he just didn’t think this particular case was justified.
That tracked the jury nullification approach that most Republican senators seem intent on pursuing – acquitting the defendant out of sense it’s the right thing to do rather than based on an assessment of the evidence.
It would take 17 Republicans to help Democrats reach the two-thirds needed for conviction.
Cruz was one of three GOP senators spotted huddling with Trump’s lawyers on Thursday.
“We were discussing their legal strategy and sharing our thoughts,” he told reporters as he left the meeting.
Cruz shrugged off criticism the meeting prompted, noting that senators aren’t jurors and aren’t bound by the sorts of rules that apply in a courtroom.
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