Combative Trump defense foretells likely impeachment acquittal

Senators view proceedings largely through partisan lens on eve of expected Saturday vote

Bruce Castor, right and  Michael van der Veen, lawyers on former President Donald Trump’s legal team, leave the Capitol after the fourth day of Trump’s impeachment trial on Friday.  (Tom Williams/CQ Roll Call)
Bruce Castor, right and Michael van der Veen, lawyers on former President Donald Trump’s legal team, leave the Capitol after the fourth day of Trump’s impeachment trial on Friday. (Tom Williams/CQ Roll Call)
Posted February 12, 2021 at 8:59pm

Lawyers for Donald Trump channeled the former president’s pugnacious partisan style in his defense Friday, even blaming Democrats as the reason they spent fewer than three hours on their presentation.

They called the House case for impeachment a “witch hunt.” They accused the House impeachment team of manipulating evidence. They repeatedly showed videos of Democratic lawmakers using the word “fight” in speeches. They called the whole trial a smear campaign tantamount to “unconstitutional cancel culture.”

And then Trump’s team sought to move quickly to a vote, a move that showed confidence that enough Republicans would remain loyal to their de facto leader to acquit Trump as early as Saturday of incitement of the Jan. 6 insurrection.

“The majority party promised to unify and deliver more COVID relief, but instead they did this,” Trump lawyer Bruce Castor said as he ended the presentation. “We will not take more of our time today, us of the defense, in the hopes you will take back these hours and use them to get delivery of COVID relief to the American people.”

It was three hours that senators largely viewed through a partisan lens, in part because Trump’s team played to those instincts, which appear all but certain to keep him from becoming the first president convicted by the Senate. The House would need 17 Republican senators to secure that conviction.

Trump lawyer David Schoen started the heart of their presentation by saying he would show Trump didn’t incite an insurrection that goes against his consistent “law and order” message.

“First though, we would like to discuss the hatred, the vitriol, the political opportunism that has brought us here today,” Schoen said.

Later, Trump lawyer Michael van der Veen presented an argument that Trump was protected from impeachment by his free speech rights under the First Amendment, an argument panned by scores of lawyers from across the ideological spectrum.

“It’s double talk. Nonsense. Illogical,” van der Veen said. “If the House managers had their way, they would ignore all of the Constitution.”

And van der Veen tried to limit the scope of the House team’s case to just the speech on Jan. 6 and Trump’s use of the word “fight.” The House impeachment team had built up a case that the former president directed his followers for weeks, but van der Veen said Trump’s uses of the word “fight,” put in full context during the Jan. 6 speech, were metaphorical and rhetorical.

“We all know that, right? Suddenly the word “fight’ is off limits? Spare us the hypocrisy and false indignation. It’s a term used over and over and over again by politicians on both sides of the aisle,” van der Veen said.

To prove the point, he played a 13-minute video of Democrats using the word ‘fight’ in political speeches. He played them again and again, many of the same clips each time, drawing laughs from some Democrats when they appeared on the screen.

Van der Veen then delivered the payoff line. “Every single one of you,” he said to the senators, “and every one of you,” he said to the House team. “That’s OK. You didn't do anything wrong. It’s a word people use, but please stop the hypocrisy.”

Just enough?

Pennsylvania Democratic Sen. Bob Casey said the defense “seemed to be directed mostly at Donald Trump watching, or as a way to really get his base voters energized.” Delaware Democratic Sen. Chris Coons dubbed it, “mostly defense by video montage,” but thought it accomplished what it needed to.

"If you’re looking for a reason not to convict, that was a bare-minimum argument that would be fairly hard to actually defend in court,” Coons told reporters. “But that’s their goal, is to give them just enough."

Republican senators who had already seemed likely to vote to acquit Trump largely confirmed that takeaway during breaks in Friday’s proceedings.

“The president’s lawyers blew the House managers’ case out of the water. They just legally eviscerated their case,” Wisconsin Republican Sen. Ron Johnson said halfway through the presentation.

Missouri Republican Sen. Roy Blunt said the repetitive video “made the point” that Trump had told his supporters to tell members of Congress to fight or else they would face primary challenges — not to storm the Capitol.

Much of that partisan division was confirmed when senators got a chance to ask questions of the House impeachment team and Trump’s defense team Friday afternoon.

Republican Sens. Lindsey Graham of South Carolina, Ted Cruz of Texas, Roger Marshall of Kansas and Kevin Cramer of North Dakota asked whether “a politician raising bail for rioters encourage more rioting,” an allusion to comments from Vice President Kamala Harris during the civil unrest in the summer of 2020.

Republican Sens. Bill Hagerty of Tennessee and Tim Scott of South Carolina asked, given that authorities are arresting those who attacked the Capitol and Trump is no longer in office, “isn’t this simply a political show trial that is designed to discredit President Trump and his policies and shame the 74 million Americans who voted for him?”

“That’s precisely what the 45th president believes this gathering is about,” Castor replied.

‘Bring your client up here’

Some Republicans who have shown an openness to voting to convict — Mitt Romney of Utah, Susan Collins of Maine, Lisa Murkowski of Alaska, and Bill Cassidy of Louisiana — asked about Trump’s actions in response to the insurrection, particularly when it came to Vice President Mike Pence.

The questions centered on whether Trump knew that Pence had been removed from the Senate chamber for his safety during the attack before he sent a tweet that disparaged Pence for not doing what Trump wanted him to do to halt the Congress from finalizing the 2020 presidential election results.

Criticizing the thoroughness of the House investigation, van der Veen said he disputed the facts of a question Cassidy asked about the timeline, saying it was hearsay.

Lead impeachment manager Maryland Democratic Rep. Jamie Raskin said Trump’s lawyers kept blaming the House managers for not having information that only Trump knows, but that Trump had refused the invitation to testify. And he added that this trial is about preserving the republic, not putting Trump in jail.

“Rather than yelling at us and screaming about how we didn’t have time to get all of the facts about what your client did, bring your client up here, and have him testify under oath about why he was sending out tweets denouncing the vice president of the United States, while the vice president was being hunted down by a mob that wanted to hang him, and was chanting in this building, ‘Hang Mike Pence, Hang Mike Pence, traitor traitor, traitor,’” Raskin said.

The Senate is expected to have final arguments and vote on Saturday.

Lindsey McPherson and Katherine Tully-McManus contributed to this report.