In this image from video, Michael van der Veen, an attorney for former President Donald Trump, answers a question from Sen. Bill Cassidy, R-La., during the second impeachment trial of former President Donald Trump in the Senate at the U.S. Capitol in Washington, Friday, Feb. 12, 2021. CREDIT: Senate Television via AP

Impeachment Trial Day 4: Trump’s Team Wraps Case In Under 3 Hours, Focuses On Free Speech

By PBS Newshour February 12, 2021

BY DANIEL BUSH

Attorneys for former President Donald Trump presented a speedy defense argument Friday in the Senate impeachment trial, using less than three hours to make the case the proceedings were a partisan smear campaign by Democrats, and that Trump should be acquitted because his call to “fight” the election was a figure of speech protected by the First Amendment.

Trump’s defense team was allotted up to 16 hours to present their case, but made clear they believed they needed far less to prove that Trump was not responsible for inciting the Capitol attack on Jan. 6.

The defense team’s brief presentation — in contrast to the House impeachment managers’ 10 hours spent arguing for Trump’s conviction — underscored their confidence that he will be acquitted.

That confidence seemed to be substantiated when senators were allowed to ask questions after the defense team rested its case. Over two hours, Democrats posed questions signaling they were prepared to vote for conviction. Most Republicans, in their questions, indicated they were ready to let Trump off the hook. Two-thirds of the Senate, which is split 50-50 between Democrats and Republicans, is required for conviction. Here are key takeaways.

REWATCH: Trump Impeachment Trial Day 4, Feb. 12, 2021

Defense zeroes in on the First Amendment

The defense argument centered on the claim that Trump was exercising his right to free speech when he told supporters at a rally ahead of the Capitol attack to “fight like hell” to stop Congress from confirming President Joe Biden’s Electoral College victory.

Democrats had anticipated this argument, and made the case earlier in the week that the First Amendment does not protect speech that incites violence. But Trump attorney Michael van der Veen argued Friday that the House impeachment managers had not proved Trump “explicitly or implicitly encouraged the use of lawless action,” and therefore his speech was protected by the First Amendment.

“Ignoring the First Amendment would conflict with the senators’ oath of office” and ignore the intent of the framers of the Constitution,” van der Veen said.

The attorney also argued that the Senate would be setting a dangerous precedent in finding fault with Trump’s speech, paving the way for Congress in the future to impeach a president if they did not agree with what he said.

The Senate should not be in the business of judging “the meaning and implied intent of a president’s words,” van der Veen said.

What does it mean to ‘fight?’

In his Jan. 6 speech, Trump used the word “fight” or a version of it 20 times. To Democrats, Trump’s use of the word was a purposeful incitement to violence, and his supporters interpreted it literally when they stormed the Capitol.

But the defense team noted that in his speech, Trump told supporters to protest “peacefully,” a clear sign, they argued, that he did not want them to use violence. Democrats dismissed that out of hand. Trump “used the word peaceful once, and using the word peaceful was the only suggestion of nonviolence,” said Rep. Joaquin Castro, D-Texas, a House manager.

Trump’s attorneys also argued that Trump was speaking figuratively, not literally, when he talked about fighting the election.

In this image from video, Michael van der Veen, an attorney for former President Donald Trump, answers a question from Sen. Bill Cassidy, R-La., during the second impeachment trial of former President Donald Trump in the Senate at the U.S. Capitol in Washington, Friday, Feb. 12, 2021. CREDIT: Senate Television via AP

“On the face of it, Mr. Trump’s words are no different than the figurative speech used by every one of the senators assembled here today,” van der Veen said, suggesting a double standard.

To drive that point home, he played a highlight reel of prominent Democrats urging their own party and supporters to “fight” against Trump. The video, which drew from a variety of political speeches without context, featured House Speaker Nancy Pelosi, Majority Leader Chuck Schumer, Vice President Kamala Harris, and Sens. Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont, among others.

Democrats know that politicians from both parties have used the terminology “forever,” van der Veen argued, but were choosing unfairly to punish Trump.

The debate over Trump’s language was similar to a disagreement at the heart of his first impeachment trial. In that case, Democrats and Republicans sparred over what Trump meant when he asked Ukraine’s leader to do him a “favor” by investigating President Joe Biden and his son, Hunter Biden.

The impeachments aside, lawmakers spent four years debating the meaning of Trump’s tweets and comments in speeches and rallies. There was rarely agreement on what he meant, and his speech Jan. 6 has proven no exception.

The politics of it all

As part of their defense, Trump’s attorneys argued that the Democrats’ decision to impeach him was driven by the desire to hurt him politically, and bar him from mounting a comeback.

If the Senate convicts Trump, it could pursue a separate vote to bar him from holding federal office in the future. Trump reportedly considered announcing on his way out of office that he planned to run for president in 2024.

It was clear from the start that it was highly unlikely Trump would be convicted; that was apparent when all but six of the 50 Senate Republicans voted this week that the trial of a former president was unconstitutional.

Still, the defense team argued that Democrats proceeded with the trial anyway in order to exact the maximum political damage to Trump and his supporters.

“Why are we here? Politics,” said Bruce Castor, one of Trump’s attorneys. The Democrats’ “goal is to eliminate a political opponent, to substitute their judgement for the will of the voters.”

Senators’ partisan questions preview the final vote

The partisan nature of the questions senators asked after the defense rested offered a clear preview of where they stand heading into the final vote.

A few of the questions were aimed at clarifying facts surrounding Trump’s conduct on the day of the attack. Republican Sens. Lisa Murkowski of Alaska and Susan Collins of Maine — two of the six GOP senators who earlier this week voted that the trial was constitutional — asked when Trump first learned the Capitol had been breached, and what steps he took to try to end the siege.

“Please be as detailed as possible,” Murkowski and Collins asked.

The defense team’s answer largely sidestepped the question and did not offer much in the way of specifics, while House managers could only postulate.

But most of the questions appeared aimed at scoring political points, or reinforcing the asker’s own positions on Trump’s guilt.

Democratic Sens. Amy Klobuchar of Minnesota, Bob Casey of Pennsylvania and Sherrod Brown of Ohio asked, if the Senate acquits Trump, “what message will we be sending to future presidents and Congresses?”

Republicans asked several questions highlighting their view that the trial was unconstitutional, and that it was an effort by Democrats to hurt Trump. In one joint question, several Republicans asked the defense attorneys “isn’t this simply a political show trial” aimed at shaming Trump and the 74 million people who voted for him last November?

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

By the end of the two-hour question-and-answer session, the House managers and Trump’s attorneys appeared angry and frustrated with the other side. The sessions did not appear to change anyone’s mind, setting up closing arguments and a final vote Saturday that appears likely to result in Trump’s acquittal.