‘Witch Hunt’ Defense Rings Again at Impeachment Trial Redux

The former president’s attorneys accused Democrats of not contextualizing their footage of the Jan. 6 Capitol riots, then rolled tape on out-of-context footage. 

Razor wire tops the anti-scaling fence surrounding the permitter of the U.S. Capitol on Thursday. (AP Photo/Alex Brandon)

WASHINGTON (CN) — Giving as good as they got after an emotional two-day display from Democrats leading former President Donald Trump’s impeachment, the defense team queued up impassioned video clips of their own for a compact rebuttal argument Friday.

Whereas the House impeachment managers had shown footage of last month’s attack on the U.S. Capitol, however, the defense deployed clips to paint Trump as a victim of “political vengeance.”

Taken from a range going back many years, the multiple minutes-long packages of video showed Democrats using the word “fight” in interviews or at peaceful protests and campaign events on a range of issues from health care to civil rights.  

Wrapping up one such 15-minute segment, attorney Michael van der Veen claimed that any comments Trump made before his supporters stormed the seat of the nation’s government on Jan. 6 were “virtually indistinguishable from the language that has been used by people across the political spectrum for hundreds of years.” 

Robert Nelson, an attorney with Hall Estill in Oklahoma who has studied First Amendment law for three decades,shredded the defense’s comparisons between the Democrats and Trump’s use of political rhetoric. 

“The clips of Democratic candidates saying that they needed to fight for their cause did not show whether the assembled supporters were dressed in Kevlar vests and helmets, were armed with guns and other objects that could be used as weapons, and were members of groups identified as domestic terrorists,” he said in an email Friday.

What the president said during his “Save America” speech formed a substantial basis of the case laid out by impeachment managers this week.

“If you don’t fight like hell,” Trump said on Jan. 6, “you’re not going to have a country anymore.”

Democrats called this a clear indicator of Trump’s intent to incite, specifically when coupled with his meritless grievances about the 2020 election results and the inaccuracies he spread about the roles played by Congress and by then-Vice President Mike Pence with the respect to the Electoral College vote count.

In a bid to sever that tie, the defense on Friday pointed to the emerging evidence that the siege on the Capitol was preplanned, with bombs planted at least a day in advance at the offices of the Democratic and Republican National Committees

“No thinking person could seriously believe that the president’s Jan. 6 speech on the Ellipse was in any way an incitement to violence or insurrection,” van der Veen maintained. 

To attorney Nelson, with Hall Estill, their defense wasn’t much of one at all. 

“Bruce Castor, arguing for the defense, suggests that Trump could not have incited an insurrection because the attack on the Capitol was preplanned by criminal elements, many in the mob had already gone to the Capitol before Trump finished his speech, and Trump told his supporters to go to the Capitol peacefully and patriotically,” Nelson wrote.

“The argument does not directly address the House Manager’s argument that Trump ‘lit the fuse’ by his speech and insurrectionists (who were communicating by phone and otherwise) were awaiting his instructions to advance on the Capitol,” Nelson continued.

Castor focused on the First Amendment for his final argument, saying Trump should have the freedom of expression to tell thousands amassed on the National Mall to “fight like hell” to take back their country. 

But this point was one that the lead House impeachment manager Jamie Raskin had dismantled earlier in the trial, evoking the words of Justice Antonin Scalia.

“He summed it up like this, he said, ‘You can’t ride with cops but root for the robbers,’” Raskin said. “And when it comes to the peaceful transfer of power to the rule of law, to respecting election outcomes our president must choose the side of the Constitution, must. And not the side of the insurrection or the coup or anybody who’s coming against us.” 

As they worked to persuade Senate jurors that Trump’s speech was not just run-of-the-mill political rhetoric, Democrats also emphasized how the Jan. 6 riot was one that featured dozens of armed individuals boasting ties to white supremacist and other extremist groups who had for weeks been openly planning their trip to the Capitol and at Trump’s public urging.

In contrast to the Democrats’ 16-hour case, Trump’s attorneys wrapped their defense up in about three.

“We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of Covid relief to the American people,” defense attorney Bruce Castor said. “Let us be clear, this trial is about far more than President Trump. It is about silencing and banning the speech the majority does not agree with.” 

After that, the Senate jumped directly into member questions, with many centering around the knowledge of Trump during the siege. One question from Senators Ed Markey and Tammy Duckworth asked House impeachment managers for example, when exactly the president knew about the violence. 

Stacey Plaskett, a House impeachment manager, noted the insurrection was broadcast on live TV. The president knew of the violence and when it was happening alongside the rest of the nation, she said. 

Another question from Senator Bernie Sanders asked if either side viewed Trump as the real winner of the election, to which Plaskett noted for House managers, the former president lost by millions of votes. When van der Veen took to the podium however, he noted his view was irrelevant to the proceedings. 

Sanders and van der Veen shouted across the Senate chamber to each other, which prompted Leahy to tell both sides to suspend. He later admonished both sides as Chief Justice John Roberts had during Trump’s first impeachment. 

“All parties in this chamber must refrain from using language that is not conducive to civil discourse,” he said. 

Capitol Police officer Eugene Goodman, who took on a crowd of Trump supporters in the building, leading them away from where senators moved to shelter in place, was awarded a Congressional Gold Medal to close out Friday’s proceedings. Senate Majority Leader Chuck Schumer said the Senate’s heartfelt gratitude went out to each officer. 

“In the weeks after the attack on January 6 the world learned about the incredible, incredible bravery of officer Goodman on that fateful day,” Schumer said. 

More fortification of Trump’s defense came from David Schoen, who focused most of Friday’s defense on claims that Democrats had withheld evidence from Trump and denied him due process. 

The argument was one flatly denied by Democrats after the proceedings wrapped.

“The Trump team was given the full trial record including all video and audio used prior to the start of the trial,” a senior aide to the impeachment managers told reporters Friday.

Trump opted not to testify in this week’s Senate trial, just as he refused to testify at his first impeachment for abuse of power and obstruction of Congress. 

From left, David Schoen, Bruce Castor and Michael van der Veen, lawyers for former President Donald Trump, arrive at the Capitol on Thursday, the third day of the second impeachment trial of Trump in the Senate. (AP Photo/Jose Luis Magana)

Avoiding discussion of the actual attack and the violence that unfolded there, or the threat that was posed to lawmakers, Capitol staff, or journalists inside, Trump defense David Schoen accused Democrats, including impeachment manager Madeleine Dean, of selectively editing video in their presentations.

Dean twice this week played a portion of Trump’s speech from Jan. 6 where he told supporters they were “going to walk down to the Capitol together.”

“They showed you that part. Why are we walking to the Capitol? Well they cut that off. To cheer on some members of Congress and not others, peacefully and patriotically,” Schoen said. 

In truth, Dean showed the entire speech twice, including the words that followed from Trump: “You have to show strength, and you have to be strong.”

Another of the nine impeachment managers, Colorado Democrat Diana DeGette noted during Thursday’s presentation that, just as Trump was delivering his speech and asking followers to offer a show of their strength, online chatter about waging a civil war spiked.  

The defense also attempted to shroud Trump’s remarks as ones protected by the First Amendment — a theory panned by most legal experts, including nearly 150 constitutional scholars who last week called it “legally frivolous.” 

A two-thirds majority of the Senate is needed to convict Trump on the charge of incitement of insurrection so that he may never again hold political office. This requires 17 Republicans to vote with Democrats — a mathematically unlikely scenario.

Schoen told reporters Thursday the trial could wrap as early as Saturday and the Senate is expected to reconvene Trump’s trial Saturday at 10 a.m.

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