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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2:27 p.m. ET, February 12, 2021

GOP Sen. Ron Johnson: Trump's lawyers "blew the house managers' case out of the water"

From CNN's Kristin Wilson

Drew Angerer/Getty Images
Drew Angerer/Getty Images

Sen. Ron Johnson, a Republican from Wisconsin, offered up a full-throated endorsement of the defense’s presentation, saying that “the President's lawyers blew the house managers' case out of the water.”

“They just legally eviscerated what the House managers put in front. I mean, the fact of the doctored and falsified facts, starting out with that. But again the video is just powerful I mean we all know that,” he said.

Johnson also charged that incitement began four years ago, and came from Democrats against the former President.

“Again what I was saying going in here that the incitement, if there's incitement involved here it started four years ago, it's been relentless," he said.

Read more about the Democrats' charge against Trump here.

2:28 p.m. ET, February 12, 2021

What the scene was like in the Senate as Trump's lawyers played footage of Democrats' comments

From CNN's Sarah Fortinsky and pool notes

Empty desks in the Senate chamber during day three of the impeachment trial, February 11, 2021.
Empty desks in the Senate chamber during day three of the impeachment trial, February 11, 2021.

As former President Trump's lawyers presented their arguments, only three GOP seats were empty.

Yesterday, CNN's Manu Raju reported that at one point during the Democrats' presentation, he saw 15 empty GOP seats.

Today, almost all senators were paying close attention inside the chamber. Republican Sen. Bill Cassidy took many notes.

Republicans appeared much more alert today. Many were taking notes and GOP Sen. Rand Paul was particularly attentive today. He’s chuckled several times, including when footage played showing Democratic Rep. Maxine Waters challenging Electoral College results.

He was smiling and nodding as video footage showed protests over the summer and Michael van der Veen, a defense attorney fo Trump, noted the Democratic responses.

On the other side of the chamber, some Democrats could been seen shaking their heads and whispering at times in the presentation.

During the protest footage, Sen. Brian Schatz shook his head several times and leaned in to whisper to Sen. Richard Blumenthal. Sen. Bernie Sanders was fidgeting with his wrist and the cuff of his shirt when he was mentioned with the 2017 shooting involving Rep. Steve Scalise. He was leaned back in his chair, not taking notes. 

When Republican Sen. Susan Collins was cited on the Rep. Eric Swalwell tweet about the threats against her after the Justice Brett Kavanaugh vote, Collins didn’t have much of a response. She remained leaning over her desk. She was looking up then jotted down some notes on a white legal pad.

When Trump's other attorney David Schoen brought up what he alleged was manipulation by House managers, lead House impeachment manager Rep. Jamie Raskin began scribbling in his notepad furiously.

When Schoen mentioned Trump representing Christ's calvary, Democrats in the room were aghast. Democratic Sens. Sheldon Whitehouse, Mazie Hirono, Kirsten Gillibrand and Joe Manchin all began talking, with Whitehouse saying incredulously, "Oh my God." 

During a number of Sen. Elizabeth Warren clips at the top, the Massachusetts lawmaker sat fidgeting with her pen, her chair turned toward the screen. She nodded slightly as more clips played.

As more Warren clips played, Sen. Ed Markey said something quite loud to Schatz a row away. 

When an ad featuring Sen. Jon Tester played, with him saying “damn right,” quite a few Democrats started giggling. Sen. Amy Klobuchar and Sen. Chris Coons started to whisper back and forth, something they continued throughout the rest of the montage. 

Gillibrand appeared to giggle when she appeared in the montage. She was leaned over talking with Schatz when her clip played.

Sen. Sherrod Brown patted Sen. Bob Casey on the shoulder after a clip played showing Casey. 

As a montage of Hillary Clinton remarks played, Sen. Alex Padilla showed Warren several notes he’d written. She nodded. 

Sen. Patty Murray passed a note to Senate Majority Leader Chuck Schumer, who sat directly in front of her, toward the end of the montage. Schumer nodded several times before turning around and passing it back to her. 

At the end, there was a lot of murmurs in the chamber, particularly from the Democratic side of the chamber. Klobuchar raised her hands slightly and said “Aw” as though she was saying “is it already over.” 

2:12 p.m. ET, February 12, 2021

The Senate is taking a short break

From CNN's Jeremy Herb, Manu Raju, Kaitlan Collins and Pamela Brown

Senate TV
Senate TV

The Senate is taking a short break – the first break of the day.

Former President Trump's defense team have been making their case today.

Trump's attorneys opened their presentation at the Senate impeachment trial arguing 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.

Trump's lawyers also went after House Democrats, accusing them of carrying out political retribution by impeaching the former president a second time after going after him throughout his time in office. They accused the managers of selectively editing footage of Trump's speeches.

Read more about how today's events have played out so far here.

1:51 p.m. ET, February 12, 2021

Fact check: Defense lawyer falsely claims Trump’s first two tweets during the Capitol attack urged calm 

From CNN's Daniel Dale

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. 

2:51 p.m. ET, February 12, 2021

Trump lawyers showed a video montage of Democrats saying "fight"

From CNN's Aditi Sangal

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:

1:45 p.m. ET, February 12, 2021

Trump is charged with "inciting violence." Here’s more on what that means.

From CNN's Zachary B. Wolf

Saul Loeb/AFP/Getty Images
Saul Loeb/AFP/Getty Images

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.

1:44 p.m. ET, February 12, 2021

The First Amendment has been brought up a lot during the trial. Here's what it says.

Senate TV
Senate TV

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:

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."

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.

1:34 p.m. ET, February 12, 2021

"Double standard": Trump lawyers use video compilation of Democrats urging for impeachment

From CNN's Adrienne Vogt

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.

“That same hatred and anger has led House managers to ignore their own words and actions and set a dangerous double standard,” Trump lawyer David Schoen said. 

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:

1:23 p.m. ET, February 12, 2021

Meanwhile at Mar-a-Lago, a "convict Trump" banner flew over his club

From CNN's Allie Malloy and Jim Acosta


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."