Trump's second impeachment trial: Day 4

Trump's defense lawyer Michael van der Veen claimed during today's presentation that “the first two messages the President sent via Twitter once the incursion of the Capitol began” on Jan. 6 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. ET and “no violence” tweet at 3:13 p.m. ET 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. ET: “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. 

While presenting their case in the Senate, former President Trump's defense lawyers showed a video to argue that prominent Democrats have consistently used the word “fight” and the phrase “fight like hell” in several speeches and interviews. The video spent a significant time focusing on Sen. Elizabeth Warren. 

"The House managers spoke about rhetoric, about a constant drumbeat of heated language," Trump lawyer David Schoen said. "We need to show you some of their own words."

The Democratic leaders shown on the video were not saying “fight” to a crowd that would later head to the US Capitol with the 2020 electoral votes at stake. Some of the statements shown in the video were made during media interviews or at rallies.

Remember: The allegation of "incitement" is central to the impeachment case House Democrats are making because it ties his words and actions to the Jan. 6 insurrection on Capitol Hill.

Watch the moment:

Former President Trump's defense team showed a video montage of various Democratic lawmakers using the word "fight" at various events, including election campaigns and in media interviews.

His attorneys are trying to make the case that Trump's language on Jan. 6 telling his supporters to "fight like hell" was merely "ordinary political rhetoric," and that the House impeachment managers ignored Trump's comments in his speech for protesters to remain peaceful. You can read Trump's whole Jan. 6 speech here.

While it's common for lawmakers to use fiery language, the charge against the former President is that he "incited" violence – and not just violence in general, but "against the Government of the United States."

The single 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.

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

House impeachment managers 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.

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.

Former President Trump's defense team has said that Trump's false claims that the presidential election was rigged and his speech to the crowd ahead of the Jan. 6 Capitol riot are protected by the First Amendment.

The First Amendment is often brought up in cases to protect people's claims but it doesn't always guarantee you the rights you think it does.

Here's what the First Amendment actually says:

That's the entirety of the US Constitution's First Amendment.

There's a lot going on in those few sentences, and it's important to know when and how it applies to common situations – and, equally as important, when it doesn't.

Our constitutional experts look at some common First Amendment arguments and when the amendment actually applies. You can read them here.

Former President Trump’s defense team showed footage of Democratic lawmakers calling for Trump to be impeached since 2017. 

Video clips of lawmakers such as Rep. Maxine Waters, Rep. Al Green, Rep. Alexandria Ocasio-Cortez and Sen. Elizabeth Warren were stitched together, urging for his impeachment.

Schoen also presented a compilation of Democrats such as Sen. Jon Tester saying “you need to go back and punch [Trump] in the face” and House Speaker Nancy Pelosi saying “you’ve got to be ready to throw a punch.” The footage included President Joe Biden’s words on the campaign trail that if he were in high school, he’d take Trump behind the gym and “beat the hell out of him.”

See the video played by the defense:

A banner reading “CONVICT TRUMP AND LOCK HIM UP” was flown over former President Trump’s club Mar-a-Lago before his lawyers began their defense in his second impeachment trial.

The banner flew over Trump’s club in Palm Beach only minutes before his defense team's arguments.

His defense team is speaking right now on the Senate floor. His attorney Michael van der Veen called the article of impeachment against Trump "an unjust and blatantly unconstitutional act of political vengeance."

Former President Trump's lawyers have twice shown video of now-Senate Majority Leader Chuck Schumer at a March 2020 pro-abortion rights rally when he appeared to threaten Supreme Court Justices Neil Gorsuch and Brett Kavanaugh.

"I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions," Schumer said.

Those comments drew a very rare public rebuke from Chief Justice John Roberts, who has also sparred with Trump about the independence of the judiciary.

"Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter," Roberts said.

Schumer later apologized, saying, "I shouldn't have used the words I did, but in no way was I making a threat, I never, never would do such a thing."

A Republican senator tells CNN there is “real concern” about the quality of the former President Trump team’s defense today, saying a poor performance will make it even more difficult to defend their expected votes to acquit him. 

The senator, who has been among those paying far closer attention to the proceedings in the chamber than many colleagues, said there is no question the House impeachment managers’ presentation will almost certainly be stronger that the defense presentation. But the senator said Republicans hope the defense is presented “in a professional and serious way – unlike the rambling show” from the first day of the trial.

This senator, along with many others, are clinging to the idea that convicting a former President is not constitutional, despite that matter being settled on a 56-44 vote on Tuesday.

Senators have been told to expect to have dinner in the Capitol on Friday evening, with the question portion of the trial expected tonight.

Michael van der Veen, a defense attorney for former President Trump, called the unprecedented second impeachment trial “constitutional cancel culture” in his opening presentation. 

Van der Veen called impeachment proceedings “plainly unconstitutional.” 

Van der Veen said the “canceling” would extend to those who voted for Trump.

“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. Now is not the time for such a campaign of retribution. It is the time for unity and healing and focusing on the interests of the nation as a whole,” he said.