Former President Donald Trump’s lawyers mounted an aggressive defense Friday in Trump’s second impeachment trial – and made multiple false and misleading claims to bolster their case.
Arguing that Trump did nothing to incite the insurrection at the US Capitol on January 6, the lawyers distorted the facts about both what happened that day and what happened in the past.
Here is a fact check of some of their claims:
Defense team misleadingly omits Trump remarks defending violence
Trump lawyer Michael van der Veen highlighted comments from Democrats that he suggested had promoted or defended violence. Trump, he argued, is different than these Democrats.
“Contrast the President’s repeated condemnations of violence with the rhetoric from his opponents,” van der Veen said. He then played a video that juxtaposed clips of Trump condemning violence, and calling himself an “ally of all peaceful protesters,” with some selectively edited clips of Democrats.
Facts First: This argument and video were misleading by omission. Trump has indeed condemned violence and called for peaceful protest, but he has also repeatedly applauded or defended violence and aggressive behavior.
Among other things, Trump has done the following since he launched his presidential campaign in 2015: praised a Republican congressman for assaulting a journalist; urged police officers not to worry about injuring the heads of suspects they are arresting; said he would like to punch a protester in the face; urged supporters to “knock the crap out of” any protester they saw holding a tomato; said a kidnapping plot against Michigan Democratic Gov. Gretchen Whitmer might not be an actual “problem”; approvingly told a fake story about an early 20th century US general who massacred Muslim terrorists with bullets dipped in the blood of pigs; said it was a “beautiful sight” when the authorities tossed a journalist to the ground during unrest in Minneapolis; mocked a reporter who got shot with a rubber bullet; and applauded the Trump supporters who surrounded a Joe Biden campaign bus on the highway, an incident that prompted an FBI investigation.
Trump’s lawyer falsely claims Trump’s first two tweets during the Capitol attack urged calm
Van der Veen claimed that “the first two messages the President sent via Twitter once the incursion of the Capitol began” urged people to “stay peaceful” and called for “no violence.”
Facts First: This is not true.
Trump’s “stay peaceful” tweet at 2:38 p.m. and “no violence” tweet at 3:13 p.m. were his second and third tweeted messages after the Capitol was breached, not his first. Trump’s first tweet was at 2:24 p.m.: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
Rioters had already entered the US Capitol building by the time of the Trump tweet about Pence.
No, the media wasn’t lying that there was hacking during the 2016 election
Van der Veen claimed that Washington officials other than Trump are the ones who used reckless and inflammatory rhetoric. He claimed: “The entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked.”
Facts First: The Democratic National Committee and the Hillary Clinton campaign were indeed hacked during the 2016 election campaign; this is a fact, not a claim made “without any evidence.” The US intelligence community, special counsel Robert Mueller and the bipartisan Senate Intelligence Committee all concluded that the Russian government was responsible for stealing and leaking internal documents and emails.
If van der Veen was suggesting that the “entire Democratic Party and national media” spent four years falsely alleging that hackers altered actual votes or vote totals in the 2016 election, that would not be true either. We can’t speak for every word uttered by every Democrat or every journalist since 2016, but it is clearly inaccurate to say that the entire party or entire media spent four years pushing such a claim. The national discussion about hacking during the 2016 election focused on the actual, confirmed hacking that targeted the Democrats’ computer systems.
Castor falsely claims rioters didn’t attend Trump’s DC speech
Trump’s lawyer Bruce Castor claimed that the rioters who stormed the Capitol didn’t attend the ex-President’s incendiary speech that day, and that this proved the insurrection was a pre-planned attack that wasn’t incited by Trump.
“Given the timeline of events, the criminals at the Capitol weren’t there at the Ellipse to even hear the President’s words,” Castor said. “They were more than a mile away, engaged in their pre-planned assault on this very building.”
“This was a pre-planned assault,” Castor said, “make no mistake.” He also claimed this assertion was “confirmed by the FBI, Department of Justice and even the House managers.”
Facts First: It’s false that none of the accused Capitol rioters attended Trump’s speech beforehand. And Castor is exaggerating the known facts about whether the assault was pre-planned.
Ellipse to the Capitol
It’s true that the timeline shows that someone who attended the entirety of the speech at the Ellipse could not have been among the very first people to breach the Capitol grounds. But that’s a much narrower claim than the one Trump’s lawyers are making.
Court documents and video footage show that some Trump supporters did make this walk from the Ellipse to the Capitol, undermining Castor’s claims. This includes one woman who allegedly went from the Trump speech to her hotel, and then into the Capitol.
And all of this ignores the fact that insurrectionists near the Capitol could have listened to Trump’s speech on their phones or could have been inspired by Trump’s previous rhetoric.
The Justice Department and FBI have accused some rioters of planning the attacks before coming to Washington, and top prosecutors have said more charges along those lines are expected. But only a handful of the 200-plus criminal cases indicate that rioters had showed up that day intending to breach the Capitol.
Therefore, Castor cherry-picked a few unrepresentative cases from the pool of more than 215 cases to support his misleading assertion that federal investigators “confirmed” this was a “pre-planned assault.”
In interviews with reporters and FBI investigators, some of the rioters said they came to DC for the rally and later got swept up in the crowd as it rushed the Capitol.
No, Georgia did not see a ‘dramatic drop’ in ballot rejection rates
As evidence of Trump’s efforts to subvert the certification of the 2020 election results, the article of impeachment cites Trump’s call with Georgia Secretary of State Brad Raffensperger where Trump asked Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results.”
Castor argued Trump’s use of the word “find” was “solely related to his concerns with the inexplicable dramatic drop in Georgia’s ballot rejection rates.”
Facts First: The intent of Trump’s use of the word “find” aside, Georgia did not experience a “dramatic drop” in ballot rejection rates, according to data from the Georgia Secretary of State’s office.
In fact, the total number of absentee ballot rejections increased in direct proportion to the number of additional votes compared to the most recent past election. But ultimately, the percentage of ballot rejections remained the same. The Georgia Secretary of State’s office noted that “the rejection rate for absentee ballots with missing or non-matching signatures in the 2020 General Election was 0.15%, the same rejection rate for signature issues as the 2018 General Election.”
Georgia election official Gabriel Sterling reacted to Castor’s claim on Twitter Friday, stating that “shockingly, the disinformation continues.”
Trump lawyers misleadingly use Biden comment on peaceful protest
Trump’s lawyers argued that Democrats had taken Trump’s words out of context. Castor argued that the House managers had used “selective editing and manipulated visuals.”
But the Trump defense team itself clearly did selectively edit its video presentations. For example, moments before this Castor complaint, he had played a video that showed then-candidate Joe Biden saying, of last year’s racial justice protests, “The vast majority of – of the protests have been peaceful.” The video then cut immediately to footage of rioting, suggesting that Biden’s claim was wrong.
Facts First: This video cut was misleading. Biden was correct when he said that the vast majority of racial justice protests in 2020 were peaceful; he was not describing riots as peaceful. Biden has repeatedly condemned rioting.
The video played by Castor was reminiscent of tactics used by Trump’s unsuccessful reelection campaign. Trump himself had inaccurately attempted to convince Americans that Biden had described violence as peaceful protest.
Trump lawyers falsely claim trial violated due process
Van der Veen argued that the impeachment process was unconstitutional, in part because it violated the due process clause.
“The due process clause applies to this impeachment hearing and it’s been severely and extremely violated,” he said.
Facts First: This is false. An impeachment inquiry is a political process, not a criminal case, therefore the constitutional rights of criminal defendants, such as due process, do not apply.
The Fifth Amendment, which outlines the right to due process, states that it applies specifically to any criminal case. And as Steve Vladeck, a Supreme Court analyst for CNN and professor at the University of Texas law school, noted ahead of Trump’s first impeachment, “Impeachment is not a criminal prosecution.”
Furthermore, William Banks, a law professor at Syracuse University, told CNN, “There is nothing in the Constitution or any law, nor any rules of the House, that prescribes a particular procedure for impeachment proceedings.”
The Constitution details only the basis for impeachment, the potential consequences of impeachment and that the House “shall have the sole power of impeachment” while the Senate “shall have the sole power to try all impeachments.”
This story has been updated.
Marshall Cohen contributed to this report.