Trump's second impeachment trial: Day 4

By Meg Wagner, Melissa Mahtani, Melissa Macaya and Veronica Rocha, CNN

Updated 9:33 PM ET, Fri February 12, 2021
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11:37 a.m. ET, February 12, 2021

Meet the lawyers who will defend Trump in his second impeachment trial

From CNN's Devan Cole

Getty Images
Getty Images

The lawyers who signed on to lead former President Trump's impeachment defense team bring a curious history of experience as they prepare to present their case today before the Senate.

The lawyers are tasked with arguing a defense for a former President who faces the impeachment charge of inciting a deadly insurrection at the US Capitol, something that if convicted could also result in him being barred from holding federal office ever again.

The two attorneys joined Trump's team a day after five members of his defense left, effectively collapsing the team.

Here are key things to know about the lawyers' leading Trump's team:

Bruce Castor: He is a well-known lawyer and the former Montgomery County, Pennsylvania, district attorney. He already caused a stir during his opening remarks on the first day of the trial, befuddling jurors by calling out a Republican senator and eliciting a critical early review from one of Trump's former lawyers who defended him during the first impeachment trial.

Castor served as Montgomery County district attorney from 2000 to 2008, before serving two terms as the county commissioner, according to a release from Trump's office. He was involved in at least one high-profile case as district attorney, when he declined in 2005 to prosecute Bill Cosby after Andrea Constand reported the actor had touched her inappropriately at his home in Montgomery County, citing "insufficient credible and admissible evidence."

Cosby was later tried and convicted in 2018 for drugging and sexually assaulting Constand at his home in 2004, despite the fact that Castor argued during a pre-trial hearing that he'd already committed the state to not prosecuting the actor.

David Schoen: He is a seasoned civil and criminal lawyer whose website says he "focuses primarily on the litigation of complex civil and criminal cases before trial and appellate courts." Trump is just the latest controversial figure his career has brought him to in recent years.

Schoen was on the team of lawyers representing Roger Stone, Trump's longtime friend and former adviser, in the appeal of his conviction related to issues Stone took with the jury. Stone dropped that appeal after the then-President commuted his prison sentence, but before Stone received a full presidential pardon for convictions, including lying to Congress to protect Trump.

Schoen, who holds a master of laws from Columbia University and a juris doctorate from Boston College, according to his biography, serves as chair of the American Bar Association's Criminal Justice Subcommittee of the Civil Rights Litigation Committee.

Read more about the lawyers here

11:37 a.m. ET, February 12, 2021

The Democrats have charged Trump with "inciting violence." Here's what incitement means.

From CNN's Zachary B. Wolf

Brendan Smialowski/AFP/Getty Images
Brendan Smialowski/AFP/Getty Images

The allegation of "incitement" is key to the impeachment case House Democrats are making against former President Trump because it ties his words and actions to the Jan. 6 insurrection on Capitol Hill.

House impeachment managers have devoted most of their presentation this week to the results, airing graphic video footage and audio from the attack on the Capitol — which put members of the Senate, who will vote on the charges, personally at risk.

Their argument is that Trump was responsible for what happened, even though he did not join the mob that marched from his Jan. 6 rally near the White House to the US Capitol, where electoral votes were being tallied to seal Joe Biden's victory.

The article of impeachment passed by the House in January reads, in part: "Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States." Read the whole thing here.

But what is incitement, exactly? The dictionary definition of "incite," according to Merriam-Webster, is simple: "to move to action : stir up : spur on : urge on." Trump clearly did that, when he directed his supporters to march toward Capitol Hill from a rally held under the "Stop the Steal" banner.

But there's a much more detailed definition in US law, which is:

"...the term 'to incite a riot', or 'to organize, promote, encourage, participate in, or carry on a riot", includes, but is not limited to, urging or instigating other persons to riot, but shall not be deemed to mean the mere oral or written (1) advocacy of ideas or (2) expression of belief, not involving advocacy of any act or acts of violence or assertion of the rightness of, or the right to commit, any such act or acts."

Federal courts said Trump did not incite a mob back in 2016 when he told supporters to turn on protesters, who later sued the President.

The New York Times has a thorough examination of how courts have looked upon "incitement." Read that here.

The history of "incitement": Oliver Wendell Holmes, the First Amendment-protecting Supreme Court justice who pushed the idea that a person can't shout fire in a crowded theater, built the "clear and present danger" test for speech. He argued Congress could only regulate speech when it represented a "present danger of immediate evil or an intent to bring it about."

Those words were written in the World War I era, when Congress and President Woodrow Wilson actively limited what Americans could say against the government and war effort.

More recently, the Supreme Court has protected all sorts of speech, like flag burning, crude political hyperbole and, importantly in this instance is Brandenburg v. Ohio, which allows advocating crime as long as it doesn't incite imminent lawlessness. 

Trump's legal team repeatedly cited that case in a legal brief laying out their free speech-focused defense.

You can read Trump's whole Jan. 6 speech here.

12:05 p.m. ET, February 12, 2021

Watch the lead impeachment managers' closing argument in the case against Trump Images Images

House impeachment managers concluded their case against Donald Trump on Thursday, urging senators to convict the former President for inciting the insurrectionists that attacked the US Capitol on Jan. 6.

Lead manager Jamie Raskin, a Maryland Democrat, delivered the team's closing argument.

"Our Framers were so fearful of presidents becoming tyrants and wanting to become kings that they put the Oath of Office into The Constitution. They inscribed it into the Constitution to "preserve, protect and defend" The Constitution of the United States.

We've got the power to impeach the President, but the President doesn't have the power to impeach us. Think about that," he said.

Later in his speech, Raskin posed some specific questions for Trump's defense team to answer. He said:

"Donald Trump last week turned down our invitation to come testify about his actions and therefore we have not been able to ask him any questions directly as of this point.
Therefore, during the course of their 16-hour allotted presentation, we would pose these preliminary questions to his lawyers, which I think are on everyone's minds right now and which we would have asked Mr. Trump himself if he had chosen to come and testify about his actions and inactions when we invited him last week:
One, why did President Trump not tell his supporters to stop the attack on the Capitol as soon as he learned of it?
Why did President Trump do nothing to stop the attack for at least two hours after the attack began?
As our constitutional Commander-in-Chief, why did he do nothing to send help to our overwhelmed and besieged law-enforcement officers for at least two hours on January 6th after the attack began?
On January 6th, why did President Trump not, at any point that day, condemn the violent insurrection and insurrectionists?
I'll add a legal question that I hope his distinguished counsel will address: if a President did invite a violent insurrection against our government, as of course we allege and think we have proven in this case, but in general, if a president incited violence against our government, would that be a high crime or misdemeanor? Can we all agree at least on that?"

Watch his full remarks below:

Read his full remarks here.

11:14 a.m. ET, February 12, 2021

GOP lawmakers gave Trump's legal team strategic advice during last night's meeting 

From CNN's Kaitlan Collins

The three Republican senators who met with former President Trump's defense team Thursday night were there to give them advice for their rebuttal, two people familiar with the meeting told CNN.

Sens. Lindsey Graham of South Carolina, Ted Cruz of Texas and Mike Lee of Utah were seen going into the room Trump's team is working out of during the trial. While inside, they gave them their suggestions for how to proceed during today's presentation, CNN has learned from multiple sources.

Lawyers Bruce Castor and David Schoen were both in the room for the meeting, as were multiple others. 

While the episode raises questions about jurors meeting with the defense team mid-trial, it also signals the uneasiness among Trump's allies of how his legal team is prepared to defend his actions today. Trump has complained at length about Castor and urged others to talk to him before he got on the Senate floor today. 

Read more about Trump's lawyers here.

11:04 a.m. ET, February 12, 2021

Here's a reminder of what we learned yesterday, day 3 of the impeachment trial

Analysis from CNN's Chris Cilizza

The House impeachment managers wrapped up their case for the conviction of Donald Trump on Thursday. They centered their argument on connecting the former President's words in advance of the Jan. 6 riot to the actions taken by his supporters on that day. They also used video, some from as far back as 2015, to show a pattern of what they said was the former President seeming to incite and condone violence.

In case you missed it, here are some of the key takeaways from the trial Thursday:

  • The rioters' statements are damning: The clear focus of the impeachment managers was to provide a clear link between Trump's words and the actions of the violent mob that stormed the Capitol. And time and time again, the best proof of that link was the rioters themselves. In interviews, in videos, in arrest records the same theme just kept emerging: They believed they were acting on the wishes (and orders) of the President of the United States. The lingering image (and sound) for me from Thursday's proceedings was a protester outside the Capitol shouting, "We were invited by the President of the United States" over and over unto a bullhorn. "They came here because the President instructed them to do so," said House impeachment manager Rep. Diana Degette.
  • Trump as a future threat: One of the most consistent arguments you hear from Republican senators opposed to the impeachment trial amounts to this: What's the point in removing Trump from office? He's already been removed from office by the voters! The point, as House impeachment managers Jamie Raskin and Ted Lieu argued today, is that if Trump is not convicted and banned from seeking future federal office (a vote that would take only a simple majority of senators), there's absolutely no reason to think that what happened in January couldn't be repeated. "I'm not afraid of Donald Trump running again in four years," said Lieu. "I'm afraid he's going to run again and lose. Because he can do this again."
  • Michigan as a test run: On April 30, a crowd of Trump supporters crowded into the Michigan state Capitol to protest Gov. Gretchen Whitmer's state-of-emergency order due with the spread of the coronavirus pandemic. (That came less than two weeks after Trump had tweeted "LIBERATE MICHIGAN.") "This was a huge win," the organizer of the Michigan protest told CNN at the time. Then, in early October, 13 men were arrested for an act of domestic terrorism — a plot to kidnap Whitmer. Michigan was "a preview of the coming insurrection," said Raskin. The connection between the events in Michigan and those at the Capitol on Jan. 6 (and Trump's initial response to both) were used by the impeachment managers to suggest that Trump had not only primed the pump for what happened on Jan. 6, but that he and his supporters had already conducted what amounted to a dry run of what we saw play out at the Capitol on January 6. As Raskin put it: "January 6 was a culmination of Trump tactics, not an aberration from them."
10:52 a.m. ET, February 12, 2021

3 GOP senators met with Trump's defense lawyers last night

From CNN's Manu Raju and Alex Rogers

A trio of Republican senators allied with former President Trump met with his defense team Thursday evening, in the middle of an impeachment trial in which they will vote on whether to convict Trump and potentially bar him from holding public office again.

Sens. Lindsey Graham of South Carolina, Ted Cruz of Texas and Mike Lee of Utah were spotted going into a room in the US Capitol that Trump's lawyers were using to prepare for their arguments.

Trump lawyer David Schoen said that the senators were "very friendly guys" who just wanted to make sure they were "familiar with procedure" on the eve of their rebuttal to the House impeachment managers' presentation.

When asked if it's appropriate to meet with senators during the trial, Schoen said, "Oh yeah, I think that's the practice of impeachment."

"There's nothing about this thing that has any semblance of due process whatsoever," he added.

Some senators view themselves as impartial jurors during impeachment trials, while others lend a hand to their party's side.

Cruz said the meeting with the Trump defense team was an opportunity for "sharing our thoughts" about their legal strategy. A wide array of Senate Republicans harshly criticized the defense team on Tuesday, the opening day of the trial, arguing that Trump attorney Bruce Castor had delivered a rambling and unfocused argument in making the case that the proceedings are unconstitutional.

When asked if he's now comfortable with the Trump team's legal strategy, Cruz said, "I think the end result of this impeachment trial is crystal clear to everybody."

"Donald Trump will be acquitted," he added. "It takes 67 votes to convict him and every person in the Senate chamber understands that there are not the votes to convict, nor should there be."

Republican senators have already signaled that they will vote to acquit the former President of the charge of "incitement of insurrection," preventing a subsequent vote on Trump's political future. In a 50-50 Senate, the House impeachment managers – all of whom are Democrats – need to persuade 17 Republican senators to join every member of their party to convict Trump.

Clare Foran, Ted Barrett and Ali Zaslav contributed to this report.

10:20 a.m. ET, February 12, 2021

Senators have been asked to submit their proposed questions to their party leaders

From CNN's Manu Raju

In another sign that things are moving quickly and that senators may get their chance to question each side tonight, GOP and Democratic senators have been asked to submit their proposed questions to their respective party leaders, senior aides familiar with the request tell CNN.

The idea among the respective leaders is to avoid duplication, these senior aides said. Some senators are working together on questions.

The expectation is that question period won’t take four hours. But importantly, senators can ask questions on the floor without prior leadership approval and can do so on the fly.

10:10 a.m. ET, February 12, 2021

House Democrats are prepared for the Q&A session as soon as tonight

From CNN's Manu Raju and Jeremy Herb

House Democrats still aren’t saying whether they will call witnesses in former President Trump’s second impeachment trial, but senior aides on the team said the managers are prepared to move to the question-and-answer period with senators as soon as tonight. 

If that happens, the final vote on Trump’s conviction could happen on Saturday.

But the one thing that could put a halt to the speedy conclusion of Trump’s trial is if the Democrats ask for witnesses – which would prompt a debate and vote on the Senate floor. 

While Senate Democrats have been signaling that they don’t think witnesses are necessary for the trial, the House aides repeatedly declined to tell reporters whether they plan to seek witnesses or allow the trial to move into closing arguments after the question-and-answer session.

The aides would not explicitly say whether they were coordinating with Majority Leader Chuck Schumer’s office on the questions they would get from senators. They said they didn’t know specific questions they would face but had a good sense of the sorts of questions that were likely. 

The aides also declined to say whether they were going to submit any additional evidence for the record.

Ahead of the defense team’s arguments today, the aides said they expected Trump’s lawyers to put forward a “false equivalency” by playing clips of Democratic speeches using fiery language. And the aides argued that Trump’s team would try to play to legal arguments instead of actually addressing the evidence that the managers presented.

10:06 a.m. ET, February 12, 2021

Biden says he's "anxious" to see how Republicans will vote on impeachment

From CNN's Jeremy Diamond and Betsy Klein

CNN briefly spoke with President Biden this morning as he joined the first lady for a walk to view Valentine's Day candy hearts on the North Lawn.

Biden told CNN he’s “anxious” to see how Republicans will vote in the impeachment trial. 

“I’m just anxious to see what my Republican friends do, if they stand up,” Biden said, adding that he is not planning to speak with any of them.