After two days of House impeachment managers making their case for the conviction of Donald Trump on a charge of incitement, the former President’s legal team got its chance on Friday.
The core of the Trump team’s defense was that his words at the January 6 “Stop the Steal” rally were just that: words. And that those words were far from an incitement that led to the violent insurrection at the Capitol.
1. Words matter. Except when they don’t: Trump’s lawyers tried to make two diametrically opposed arguments to dispel the idea that the former President was culpable for the January 6 Capitol riot. On the one hand, Trump attorney Michael van der Veen suggested that the President using the phrase “peaceful and patriotic” regarding the protests during his speech at the “Stop the Steal” rally was proof-positive that he had told them to not engage in a violent manner. On the other hand, Trump’s lawyers dismissed his repeated use of the words “fight” during that same speech by playing a long smash cut of Democratic politicians saying the word “fight.” The message was muddled: Do words – whether from the President or anyone else – matter, or don’t they? It seemed as though Trump’s lawyers were making the case that words mattered when it bolstered their argument that Trump didn’t incite a riot but not so much in other circumstances.
2. January 6 was NOT inevitable: At the core of the defense team’s case were these twin notions: a) What happened on January 6 was an isolated incident with zero prologue and b) these bad actors were going to behave badly no matter what Trump said or did that day. “You can’t incite what was already going to happen,” said van der Veen at one point. What those arguments are aimed at doing is removing any blame for Trump in, well, any of this. The facts, however, are not on the side of Trump’s lawyers on this one. Trump had been insisting for months – mostly via his Twitter feed – that the election had been stolen. Even before that, he had praised the occupying of the Michigan state Capitol and mocked Gov. Gretchen Whitmer (D), who was the subject of a kidnapping plot foiled by law enforcement. And in advance of the January 6 rally, Trump had egged on his supporters to be there, promising a big event that they wouldn’t want to miss. While it’s impossible to know what would have happened on January 6 if Trump had not primed the pump, it’s safe to assume that the crowd would have been nowhere near as large or as convinced that the election had been stolen. To take Trump out of the picture – and insist a violent riot would have occurred without him – is to provide an incomplete view of what we know happened.
3. Rampant nitpicking: The Trump defense team’s attempts to make mountains out of molehills was, at times, laughable. After insisting that they had uncovered clear evidence that the House impeachment managers had manipulated evidence – a big charge! – the Trump team went on to cite two major examples of this alleged wrongdoing. The first was a tweet by a Trump ally in which she wrote that the “Calvary is coming.” The impeachment managers had manipulated the tweet’s meaning, Trump attorney David Schoen argued, because they said it was evidence that Trump’s supporters were rallying their base to come and support him at the rally. Not true, Schoen said, what the tweeter actually was doing was referencing “Calvary Hill,” the place where Jesus was crucified. Yes, he really said this. (Per Capitol Hill pool reporter Luke Broadwater: “When Schoen mentioned Trump representing Christ’s calvary, Democrats in the room were aghast. Senators Whitehouse, Hirono, Gillibrand and Manchin all began talking, with Whitehouse saying incredulously, ‘Oh my God.’” The second major example that the House impeachment managers had manipulated evidence, according to his lawyers, was a photo of lead manager Jamie Raskin, which appeared in The New York Times, examining tweets that Trump allegedly retweeted. But the date on the tweet was January 3, 2020, not January 3, 2021, the defense pointed out. Scandal! Except that Trump has been de-platformed from Twitter, meaning that ALL of his tweets need to be reconstructed because you can’t get the originals. And that the typo evident in the New York Times picture was fixed by the time the impeachment managers used the tweet in their case. Embarrassing stuff.
4. The ‘fight’ video: As we know from reporting after the airing of a 13-minute video detailing the events of January 6 by the impeachment managers on the second day of the trial, the Trump team was scrambling to make more videos of their own to counter the impact it had on the jury of senators. And come up with videos they did! The most notable one was a 543-minute 10-minute mashup of Democrats – from Joe Biden to Kamala Harris to virtually every Democratic senator – saying the word “fight.” The point, as I noted above, was to make the case that Trump telling his supporters to “fight like hell” shouldn’t be taken as a serious incitement to violence because, well, Democratic politicians say the word “fight” as well. But to believe that and be convinced by it, you have to be willing to ignore any sort of context. As in: Saying that you want to “fight” to make health care a basic human right is different from telling a mob that they need to “fight like hell” or their country will be gone. But I digress…) It’s a pretty remarkable thing to charge that the House impeachment managers took tweets and video clips out of context, and then run that “fight” video … that takes some chutzpah.
5. It’s all about the ‘hate’: The main reason that Democrats in the House impeached Trump, according to his lawyers, was not because of his action (and lack of action) on January 6 but rather because they simply hate him – and that hate has blinded them to due process and the rule of law. “Hate has no place in the American justice system and certainly no place in the Congress of the United States,” scolded Trump attorney Bruce Castor near the end of the defense team’s argument. As evidence he cited a video – I told you they made a lot of videos! – that cut together lots and lots of Democrats calling on Trump to be impeached over almost the entire duration of his presidency. Which happened! There was a group of House Democrats who tried to file impeachment motions long before we ever heard of Trump’s call with the Ukrainian President or his speech on January 6. But this argument is also a bit of a red herring. After all, this isn’t an either/or choice. You can hate Trump and still believe he didn’t incite a riot. And vice versa. Trump’s legal team was simply not willing to engage on the merits of what Trump said and did. And so they fell back on the everyone-is-so-partisan argument. It undoubtedly will resonate with many Republican senators looking for a justification to vote to acquit Trump. But that doesn’t make it true.