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Impeachment Trial Diary: Daily Thoughts on the Senate’s Proceedings

Benjamin Wittes, Tia Sewell
Wednesday, February 10, 2021, 7:41 AM

A summary of each days trial proceedings with analysis and reflections.

President Donald J. Trump boards Marine One on the South Lawn of the White House Wednesday, Dec. 23, 2020 (Official White House Photo by Tia Dufour/

Published by The Lawfare Institute
in Cooperation With

Note: This column is written in the first person singular, but significant work summarizing arguments has been done by Tia Sewell, whose name thus appears on the byline. All first person singular pronouns throughout refer to Benjamin Wittes.

Day 5, February 13, 2021

In retrospect, it would have been better for the House of Representatives to pass three separate articles of impeachment—one covering the president’s systematic efforts to overturn the results of the 2020 election, one covering his incitement of the insurrection of Jan. 6, and one covering his abandonment of his constitutional duties to repel the attack on a coordinate branch of government that resulted.

The effort to mash these three distinct offenses into one has created problems for the House managers. It has allowed the former president’s lawyers to argue that the lone article—which alleges incitement of the insurrection—does not cover the president’s conduct either before or after the riot started. It has allowed them to argue that the First Amendment protects the political speech Trump gave on Jan. 6 and thus dismiss everything else. And it has allowed them to argue that Trump’s failure to act in the face of the storming of the Capitol began is irrelevant to the charge of inciting the riot. The managers have decent answers to these points, but having to address them at all is a suboptimal litigating position, particularly because it has become clear that key Republican senators are most outraged by Trump’s conduct during the riot—a matter the text of the article of impeachment inconveniently does not address at all.

In some respects, it all doesn’t matter. The question today is not, after all, whether the Senate will convict Trump. It is whether four, five, six, seven, or maybe a few more Republicans will join with all Democrats to vote to convict. It is how close the Senate will get.

But in some respects, it matters a lot. The former president’s lawyers have given Republicans a fig leaf on the incitement itself. Democrats, after all, have used incendiary language too, and there was a certain amount of pre-planning that Trump’s lawyers can argue means that Trump didn’t incite anything. What’s more, the Brandenburg test is an exacting one. And isn’t it outrageous that the managers are asking the Senate to ignore the First Amendment in evaluating Trump’s conduct?

But the former president’s lawyers have offered no fig leaf whatsoever on the president’s conduct during the riot. They have presented exactly no evidence to contradict the notion that Trump abandoned his responsibility to protect Congress, that he left his vice president and the speaker of the House and 435 members of Congress for dead.

I don’t doubt that, faced with a clean article on this point, Republicans would have somehow managed to vote to acquit Trump. But I suspect it would have made a few of them squirm a bit more had it been presented and argued detached from the larger story, rather than buried in it.

As it is, this matter becomes central today—the final day of the Senate trial—even though it is mentioned nowhere in the article itself.

Friday’s new details about Kevin McCarthy’s phone call with President Trump during the riot has set the stage for today’s proceedings, with most people expecting final arguments and a quick vote.

But Raskin has other ideas. He opens the day with a call for witness testimony. Raskin specifically wants a Zoom deposition with Rep. Jamie Herrera Beutler, who released a statement late on Friday night confirming her conversation with McCarthy regarding the Jan. 6 attack. He mentions the possibility of other witnesses, as well.

Van der Veen steps up to argue that witnesses are unnecessary and that senators should instead just wrap up the trial, threatening that if the House managers want witnesses, he is “going to need over a hundred depositions, not one.” According to Jason Miller, a Trump spokesman, the defense’s witness wish list has 301 names on it and is growing.

Raskin counters that the new disclosure the previous evening makes it appropriate to hear from a limited number of witnesses. The House managers don’t need to interview hundreds of witnesses, he states; and the defense doesn’t either. Their client, after all, could answer all of the relevant questions. Van der Veen comes up to argue about witnesses further, stating that the depositions must be done “in person, in my office, in Philadelphia”—a statement met with raucous laughter in the chamber.

After about 40 minutes of debate, senators take a vote on whether or not to allow witnesses. The majority votes to allow witnesses in a 55-45 vote, meaning that the trial’s timeline is effectively thrown up in the air at this point. One of the premises of the whole enterprise has been that none of the senators actually wants the trial part of the trial. Republicans find the whole enterprise deeply embarrassing. And Democrats want to move on to legislative business. Yet if one is inclined to convict, how can one vote to prevent the managers from putting on the evidence they feel is necessary? And if the Senate allows the managers to bring their witnesses, how does one vote to prevent the former president’s lawyers from bringing witnesses they contend are necessary?

It’s a blackmail game of sorts by the defense. Go forward with this, and we will call a slew of witnesses and make this take weeks or months. If you vote to prevent us from doing so, we’ll use that to denounce the proceedings as grossly unfair.

If Democrats didn’t have their own reasons for wanting brevity, even having just voted to allow the witnesses, there would be answers to such threats. But they do. They also want to vote and get on with things. So the House managers and Trump’s defense counsel and the senators begin negotiations at this point to discuss witness depositions and to find a compromise.

It doesn’t take long. Castor returns from a recess to announce that there has been an agreement between the defense and the House managers: Trump’s team will allow Beutler’s statement to be entered into the record as evidence and will stipulate that her testimony would have been consistent with it, but no witness depositions will occur in the trial. Raskin reads the statement, which reads in its entirety as follows:

In my January 12 statement in support of the article of impeachment, I referenced a conversation House Minority Leader Kevin McCarthy relayed to me that he’d had with President Trump while the January 6 attack was ongoing. Here are the details:

When McCarthy finally reached the president on January 6 and asked him to publicly and forcefully call off the riot, the president initially repeated the falsehood that it was antifa that had breached the Capitol. McCarthy refuted that and told the president that these were Trump supporters. That’s when, according to McCarthy, the president said: “Well, Kevin, I guess these people are more upset about the election than you are.

Since I publicly announced my decision to vote for impeachment, I have shared these details in countless conversations with constituents and colleagues, and multiple times through the media and other public forums.

I told it to the Daily News of Longview on January 17. I’ve shared it with local county Republican executive board members, as well as other constituents who ask me to explain my vote. I shared it with thousands of residents on my telephone town hall on February 8.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time.

With no further motions, Raskin begins the House managers’ closing arguments. The Senate’s brief flirtation with the idea that its sole power to try all impeachments might include having a trial is over.

Raskin argues that Trump clearly incited the insurrection on Jan. 6, and that Beutler’s statement only advances this point. He says that when Trump allegedly told McCarthy, “Well, Kevin, I guess these people are more upset about the election that you are,” he clearly did not intend to nor act to call off the riot on Jan. 6. This refusal to send help and further analysis is “decisive evidence” of incitement of insurrection, he contends.

He then reiterates the points the managers have made during their arguments. He touches on the “hour-by-hour” evidence of Trump’s incitement. He explains that Trump, seeking to overturn his own legitimate electoral loss, embraced violent extremist groups and assembled a mob to quite literally stop the vote count on Jan. 6. He argues that Trump’s failure to act after and during the riot proves his guilt, all of which was an absolute “dereliction of duty” that is inextricable from inciting the insurrection.

Cicilline is up next. He expands on what happened after the mob stormed the Capitol and denies the defense’s claim that the managers’ evidence was manufactured. Rather, he says, there are certain facts “we know” to be true. Contrary to the defense’s claim, he says, Trump must have known that Pence was in danger on Jan. 6. Here, Cicilline presents a timeline showing Trump’s tweets and phone calls with various lawmakers, including McCarthy, who pleaded with him to no avail that he do something to stop the attack.

Dean then takes the floor to review the evidence presented concerning Trump’s months-long effort to overturn the U.S. election. She argues that Trump’s Jan. 6 speech, by itself, was not the grounds for impeachment—but viewed in concert with the course of Trump’s conduct leading up to Jan. 6, it’s clear that Trump incited the attack. She states that evidence has made it clear that the rioters did what they did for Trump, at his direction, after he riled them for months with fraudulent claims of a stolen election. Dean notes that she didn’t even know the extent to which Trump incited violence and how close the Capitol attack came to a much higher death toll until working on the House managers’ team. “We are in a dialogue with history,” she concludes, urging senators to condemn the past so the country can move forward with hope. She states, “History has found us; I ask that you not look the other way.”

Next, Neguse addresses the arguments presented by Trump’s defense. He begins with the private citizen argument, stating that presidential abuses are extraordinary and must be dealt with in an extraordinary way. Impeachment, as a process separate and apart from the criminal justice system, offers this opportunity, Neguse says. He also sketches out why the defense’s complaints of insufficient due process are invalid; he states that Trump was invited to testify and declined, not to mention that the presentation of evidence during the Senate trial constituted all the due process the president could reasonably ask for. In terms of due process, he also notes that the senators experienced the insurrection firsthand and saw the president’s remarks: “[Y]ou all lived this history,” he states. Neguse also addresses the matter of the First Amendment protections on political speech. Specifically, he counters the defense’s video montage of prominent Democrats urging their supporters to “fight,” arguing that the difference between a normal politician’s use of the word and Trump’s on Jan. 6 is “obvious”; none of those speeches ended in a violent march on the nation’s Capitol, he says.

Neguse asserts that the defense’s arguments are “distractions” and have nothing to do factually with whether or not the president incited the Jan. 6 attacks. At this point, he moves into an optimistic monologue, in which he asserts that he may be naive, as “the youngest member” on the House’s team, but he doesn’t think that the opposition’s diversionary tactics will work. This body secured passage of the Civil Rights Act, he states. It decided to enter the U.S. into World War II. Congress has “always risen to the occasion when it mattered the most,” he says. This is why countries look to the U.S. as a “guiding light, a north star,” he claims. “That decision is in your hands.”

Raskin closes the arguments. He draws back to remarks his daughter made about a rioter who had left home to join Trump’s actions in D.C. on Jan. 6 and told his children that he might die there. “How can the president put children of people’s families in that situation and then just run away from the whole thing?” his daughter had asked. Raskin concedes that he was ashamed; he had only thought about the story like “a prosecutor,” considering it just more “damning evidence” that the rioters were expecting violence. But he says that his daughter thought of it like a “human being … like a patriot.” He notes that beyond the politics and the legality of the situation, there is the morality of the situation—the recognition that “the children of the insurrectionists, even the violent and dangerous ones, they are our children as well. They are Americans.” Here he quotes his late son, Tommy, saying that “it is hard to be human.” He notes that we must take care of the hearts and minds of these children, and take care of our country’s future.

After all, Raskin says, this trial isn’t about Donald Trump; it’s about “who we are.” It’s about actually supporting the people who defended the Capitol, he states. Restoring the honor of the Capitol. Showing the world that the U.S. is, truly, the beacon of democracy it sets out to be. He asks the senators, when you see the footage of Officer Hodges shouting in agony as he’s being tortured by rioters, when the vice president escapes a violent mob intent on hanging him, “[I]s this the future you imagined for our kids?” “Is this America?” That’s up to you, he tells the senators.

The House managers reserve their 28 remaining minutes, and Trump’s defense takes the floor.

Van der Veen delivers about 40 minutes of closing argument, with no other lawyers from the defense counsel speaking during the team’s closing arguments. He begins by assailing the “mess that was the closing of the House managers” and accuses the managers of “doctoring of evidence,” saying that his team didn’t receive the House’s evidence until Tuesday afternoon, when the trial had already begun. Van der Veen continues to state that the House managers attempted to use evidence they had never presented before, which he calls “desperate.” And he states that they didn’t talk about the Constitution, the law or due process for Trump once during their closing.

Van der Veen states that his entire team has repeatedly and unequivocally condemned the violence that took place on Jan. 6; that it was a “heinous act on the home of American democracy.” But he argues that while everyone can agree there was a violent insurrection at the Capitol, this trial asks whether Trump “willfully engaged in violence” toward that end. No matter the “emotion injected” and despite all of the disturbing video footage presented, van der Veen says, Trump is innocent. No “unbiased person” could listen to Trump’s speech on Jan. 6 and believe that it suggested or incited violent action, he asserts.

He further claims that Trump is innocent of incitement because the violence was “preplanned and premeditated by fringe left and right groups” who “hijacked the event for their own purposes.”

Van der Veen continues to contend that Trump’s words have been taken out of context repeatedly by the House managers, who have ascribed bad intentions to Trump’s clipped phrases in order to fit the “false narrative” they have created to “smear” Trump. The managers have done so because Trump is their political opponent, van der Veen says. It is “constitutional cancel culture.” And it is a slippery slope toward impeachment as a political tactic.

Next, he returns to the tu quoque defense, talking about how Democratic politicians have made comments that “gave comfort” to violent protesters during the George Floyd protests in the summer of 2020. President Biden never condemned these riots, van der Veen says. Arguably, by encouraging supporters to donate to a bail fund for demonstrators during this time, Vice President Harris did far more to incite violence than his client ever has, he contends. All of this is to say that Democrats not only want a double standard; they are seeking to censor disfavored political speech using the impeachment process.

He then moves on to discuss what he terms the “Raskin Doctrine,” claiming that the House is arguing that elected officials effectively do not have free speech rights, alleging that the “Democrats have invented an entirely new legal standard” that can’t satisfy the Brandenburg test. “Can Congress now ignore Supreme Court precedent?” he asks.

He concludes by offering senators four grounds on which to acquit Trump: He says that (1) the Senate has no jurisdiction to try a former president; (2) the impeachment article has too many elements, and each allegation should have been made separately under Rule 23 of the Senate; (3) Trump was not afforded due process; and (4) voting to acquit will allow healing to begin, so that the nation can focus on pressing crises.

Raskin then takes the floor again, wrapping up the trial with a final five minutes of thoughts. He responds to van der Veen’s “Raskin Doctrine” comment, saying that if the “Raskin Doctrine” is that no president can incite a violent insurrection, he would take its namesake as an honor. He further contends that the defense has misconstrued Bond v. Floyd—arguing that Trump is being impeached for violating his oath of office, not being prevented from taking that oath of office in the first place, as was the case in Bond. And he ends by noting that during questioning, Trump’s counsel refused to admit that Trump had lost the 2020 election, despite all of the evidence the House presented about how Trump’s big lie had set the stage for violence that unfolded on Jan. 6. Trump incited the Jan. 6 attack, Raskin concludes, “and now he must pay the price.”

The Senate then votes on the article of impeachment: 57 senators vote to impeach, and 43 vote to acquit. As the Constitution requires a two-thirds majority for conviction, Trump is acquitted.

It is impossible to feel satisfied with this outcome. It is hard to escape the feeling that the impeachment clauses have been rendered something of a nullity. Yes, this is the least partisan vote on a presidential impeachment in history. Seven Republicans, including Richard Burr of South Carolina and Bill Cassidy of Louisiana, join the Democrats to convict Trump. Yet it’s not enough. It’s not close to enough.

And if the impeachment power cannot produce a conviction under these facts and under these circumstances, it seems pretty useless. Indeed, does it provide any real protection at all against a president run amok?

Ever since Richard Nixon’s resignation under threat of impeachment, Americans have assumed that the threat of impeachment carries real punch. But Trump has revealed it as hollower in the face of political polarization than I could possibly have imagined. What do we do about that? I have little fear of the specter Trump’s lawyers conjured up of impeachment being weaponized against future presidents. I have a lot of fear, by contrast, of impeachment being a useless tool in the face of future presidents who command the loyalty of a bare third of the Senate for purely partisan reasons. Together, the two Trump trials have shown that in impeachment trials, facts don’t matter, that evidence won’t be presented and doesn’t matter when it is presented, and that party is everything. Transforming the Senate’s sole power to try impeachments into a Senate minority’s sole power to nullify all impeachments is an unforgivable morphing that future presidents will understand and exploit. It effectively means that the president’s four-year term is limited by the impeachment power only theoretically.

The House managers did a remarkable job. As I said earlier, they offered the finest performance of legislative litigation I have ever seen. I don’t doubt it will be meaningful to history and to the public’s understanding of what happened on Jan. 6 and what role the former president played in those events. But that is not what an impeachment trial is for. An impeachment trial is intended to protect the Republic against out-of-control leaders. It is intended to ensure their removal, if they are still in office, and their disqualification, if not.

In this respect, the second trial of Donald J. Trump, as the first, must be judged a total failure.

Day 4, February 12, 2021

The president’s defense has its work cut out for it. It can win on brute force—that is, it has the votes in the Senate to prevail, so it doesn’t really matter how compelling a case Donald Trump’s lawyers present. Or, in the alternative, the attorneys for the former president can try systematically to dismantle the case the House managers have presented over the previous couple of days.

The approach the former president’s legal team chooses? A bit of both. Over the course of the day, the lawyers land a few blows. They make some actual arguments. They raise some actual questions about the case against the former president. And they also yell a lot. They show numerous videos of rioting and of Democrats saying things that are less than total condemnations of violence. They prove conclusively that Democrats have, in fact, used the word “fight” on numerous occasions. And they do a lot of blustering past the facts the managers have put on the table.

The presentation is mercifully short. The president’s legal team uses only a few of the 16 hours available to them. The reason, I think, is that both faces of their presentation are eyeing the doors. On the substantive side, there really isn’t that much to say, and the longer they talk, the more nakedly obvious that fact is. So wrapping up quickly is a wise strategy. On the bluster side, which is both about entertaining and flattering the Trumpist ecosystem’s expectations and about using up some time so the presentation is not embarrassingly short, there is no need to use anything like the full time available to the defense.

The president’s legal team is once again getting panned. Writing in the Atlantic, David Frum asks: “I watched this self-pity party from my own house, only a few miles north and west from the Capitol attacked by a Trumpist mob on January 6. And I thought: How on earth could a former president of the United States possibly have hired a team of boobs this bad at law?

I actually think the president’s team did a little better than that. Yes, they are thoroughly outclassed by the other side. Yes, their presentation is dripping with grievance and sneering contempt. And yes, they are ultimately ineffective. But they also have a really bad hand to play—except, of course, in the not-insignificant sense that they have the votes to prevail no matter what they do. As I noted yesterday, they have no good arguments that the president’s conduct was okay and they have to make their bad arguments at length. There is no good way to do that following the case the managers put on.

Michael van der Veen opens the defense counsel’s argument with the assertion that the impeachment charge brought against Trump is “an unjust and blatantly unconstitutional act of political vengeance.” It’s wrong on the facts, he says. This opening claim serves as a broad and central thesis for the defense, which runs throughout the roughly three hours of argument they bring forth. Van der Veen argues that President Trump encouraged his followers to engage in peaceful protest on Jan. 6—which is “the very antithesis” of the incitement that is “slanderously” alleged by the House impeachment managers. Van der Veen then sketches out a few main points to his argument, which provide a road map for the arguments that follow.

First, he states that, contrary to the House impeachment managers’ assertions, Trump’s rhetoric was protected by the First Amendment as political speech. Van der Veen contends that Trump brought his case before the various judicial bodies because the entire premise of Trump’s election contention was that the U.S. democratic process should play out by the letter of the law. He states that this is a common practice among politicians and, to this end, plays a video showing Democrat lawmakers objecting to the certification of Trump’s electoral victory in January 2017.

He then moves on to emphasize that Trump is a “law and order” president. The defense rolls a video of Trump affirming, over and over, his support for “law and order,” set off against clips of Democratic commentators and politicians either making incendiary comments or speaking about unrest without outright condemnation. The defense’s point is that this whole trial is hypocritical: Democratic politicians themselves “endorsed and encouraged” riots throughout 2020, van der Veen states. Further, he says “unlike the left, President Trump has been entirely consistent” in his opposition to mob violence. The Democrats, by contrast, “clearly demonstrated” their belief that the legitimacy of violent rioting depends on protesters’ political views.

All of which builds to the height of van der Veen’s opening remarks: This trial, he states, is “constitutional cancel culture” in which partisan politicians are attempting to “censor” and “smear” Trump retroactively. He states that “now is not the time for such a campaign of retribution. It is a time for unity … to rise above partisan lines.”

David Schoen, another Trump team lawyer, then takes the floor to speak further about the “hatred, vitriol and political opportunism” of the impeachment. He begins by rebutting the House managers’ claim that they did not intentionally hold the article of impeachment and contends that this “snap impeachment” denied Trump sufficient due process. The argument is that in their haste to impeach Trump, House Democrats sped through proceedings without sufficient investigation into the Capitol riot. This is another theme that comes up frequently throughout the day. Schoen alleges that this lack of due process is evidenced by Speaker Pelosi’s own calls for a 9/11-like fact-finding commission to determine the causes of the riot. She seems to acknowledge that we don’t yet know the facts, he argues. But impeachment did not wait until we do. Schoen also contends that the House managers repeated use of “reportedly” in their presentation means that they have no real evidence; “reportedly” is “exactly as reliable as, I googled this for you,” he claims. “You get more due process when you fight a parking ticket.”

Then Schoen goes in a different direction: He claims that the defense counsel has “reason to believe” that the House managers manipulated evidence presented in prior days of the trial. Schoen seems to allege that the House managers’ tweets had been doctored in some way. He cited as evidence a photo of Raskin from a New York Times article that showed an incorrect date on a tweet and a Twitter check mark next to the account name, which Schoen claimed was wrongly attached to the user’s account. (A senior impeachment aide told NBC news that the House team re-created images of Trump’s tweets because his account was removed from the platform, and this was a mistake that managers corrected prior to trial. The text is entirely unchanged.) Schoen also contends that a Trump supporter had not made a spelling error but had been referring to “calvary,” that is, had made a religious reference to the site of the crucifixion or an open-air representation of it. The tweet, he argued, wasn’t a promise to bring the “cavalry,” which is to say the mounted troops, in a tweet about Jan. 6, as House managers had suggested.

Schoen also contests the House’s video presentations, claiming that the managers cut full videos from Trump’s Jan. 6 speech and his remarks following Charlottesville to bring forth evidence that did not reflect the president’s words. He plays the full videos from these instances, emphasizing that on Jan. 6 Trump told protesters to “peacefully and patriotically” cheer on certain members of Congress. “You have to get your people to fight, and if they don’t fight, we have to primary the hell out of the ones that don’t fight,” Trump is shown saying. Trump was just saying people should use the political process.

And in that, Schoen argues, he is no different from Democrats. Schoen plays a video—an endlessly long video—of Democratic lawmakers using the word “fight” in campaign ads, public statements and rally speeches. These include politicians like Elizabeth Warren, Kamala Harris, Chuck Schumer, Jamie Raskin, Nancy Pelosi, Joe Biden and other prominent figures. It’s a full 10-minute montage of “fight” references, set against intense music, which segue quickly from one to the next.

Schoen moves next to different video footage, this one targeted at Democrats’ responses to protests in 2020. The clips flash between disturbing depictions of violent riots, fire, and shots of politicians saying, in various ways, that they are “proud of the protests” and are happy to see people turning out peacefully. This video, too, is paired with ominous music.

Next Schoen plays videos of Democratic lawmakers challenging the integrity of U.S. elections in the past—including bits from Hillary Clinton, Stacey Abrams, Nancy Pelosi and Bernie Sanders.

It’s the full tu quoque defense.

Van der Veen then returns to address the First Amendment in the context of Trump’s speech. He says that this case is about the managers’ “political hatred”' for Donald Trump, which has led them to falsely construe the president’s statements and make “astounding” legal arguments. On the First Amendment issue, van der Veen says, there are two main questions that matter:

  • Does the First Amendment apply to the Senate chamber in these proceedings?
  • Does Trump’s speech fall under the protection of the First Amendment?

Van der Veen states that the answer to both of these questions must be yes.

Text of the First Amendment prohibits senators from ignoring the protection, as it explicitly prohibits Congress from “abridging the freedom of speech,” he argues—ignoring the fact that the prohibition is against making law and impeachment is not a legislative act. He assails the House managers’ First Amendment arguments, deeming them “totally intellectual dishonesty” and calling the 144 constitutional law professors who agreed that there was no legitimate basis to use the First Amendment in Trump’s defense “partisan.” He further states that the professors’ letter is a threat to his personal professional reputation. It is this argument that prompted Frum’s rage in the Atlantic:

If future generations of law professors want to teach a class in what never to do, the belligerent and self-indulgent performance of Michael van der Veen, one of Donald Trump’s impeachment lawyers, could provide a lot of the video content. Deep into his defense of the former president today, van der Veen broke into a highly personal complaint. More than 140 law professors—including President Ronald Reagan’s solicitor general and a co-founder of the conservative Federalist Society—had signed a letter condemning the Trump team’s arguments as “frivolous.” This letter badly hurt van der Veen’s feelings. The letter, he said, represented[] a “direct threat to my law license, my career, and my family’s financial well-being.”

Back on the merits, van der Veen states that because Trump is not just “a guy on the street” or a “fire chief” but, rather, an elected official, he has “enhanced free speech rights,” citing Supreme Court cases Wood v. Georgia and Bond v. Floyd.

In Wood v. Georgia, the Supreme Court ruled that a sheriff’s criticisms of grand jury proceedings—specifically, criticisms of the jury’s “crude attempt at a judicial intimidation” of Black voters and leaders—were protected speech under the First Amendment. The Wood decision holds that the sheriff “was an elected official and had the right to enter the field of political controversy, particularly where his political life was at stake.” Similarly, van der Veen argues, Trump’s political speech encouraging investigation into voting irregularities in the 2020 election was, by the logic of this ruling, protected speech.

Bond v. Floyd concerned the conduct of Julian Bond, the civil rights activist who had advocated for the burning of draft cards during the Vietnam War. The Supreme Court ruled that Bond’s speech was protected under the First Amendment, requiring “that legislators be given the widest latitude to express their views on issues of policy.” Van der Veen argues that this decision, too, extends to Trump’s conduct, as Trump is an elected official and “the Supreme Court says elected officials must have the right to freely engage in public speech.” He further states that with Bond, legislators have a unique obligation to take a stance on controversial political questions so that their constituents can be fully informed—and claims that Trump was doing just this with his election rhetoric.

As for the second question, whether Trump’s speech falls under the protection of the First Amendment, van der Veen contends that political speech, particularly, is secured by the amendment. He says that the government cannot prohibit speech simply because it has the potential to increase the likelihood of violence in the future. And he draws on the Brandenburg v. Ohio “landmark” Supreme Court case, which “precludes speech from being sanctioned as incitement to riot unless” three conditions are met:

  1. The speech explicitly or implicitly encouraged use of violence.
  2. The speaker intends that his or her speech results in violence.
  3. The imminent use of violence is the likely result of the speech.

Van der Veen says that the president’s Jan. 6 rally statement to “peacefully and patriotically make your voice heard” fails this test and criticizes the House managers’ focus on the word “fight.” He asserts that politicians talk like this all the time—and once again, the defense rolls the previously shown video in which Democratic lawmakers use the word “fight” in speeches.

After a recess, Bruce Castor takes over to expand on the Brandenburg argument. He is less embarrassing this time than during his argument on Tuesday over jurisdiction.

Castor states, “Clearly, there was no insurrection …. [W]hat our colleagues meant was ‘incitement to violence.’” According to Castor, insurrection must include some form of “shadow government” and more premeditation than was the case on Jan. 6. He goes on to argue why the Brandenburg standard is not met and Trump’s speech is protected. Castor claims that Trump’s calls for peace on Jan. 6 absolve him from guilt for encouraging the violence that occurred that day. As for intention to spark violence, Castor states that this can’t be true, given that Trump never hesitated to show his support of the law—in fact, Trump is “the most pro-police, anti-mob rule president this country has ever seen.” And on the third question of imminence, Castor contends that the FBI, Justice Department and House managers themselves have all confirmed that the violence was planned well in advance. In short, he argues that Trump’s speech did not push rioters into acting violently, as they were already committed to doing so. In walking through the timeline, he claims that rioters were violent prior to Trump’s remarks and that Jan. 6 “was a pre-planned assault, make no mistake.”

In a particularly ill-advised decision, Castor also spends some time disputing House managers’ claims about Trump’s call with Georgia Secretary of State Brad Raffensperger. He notes that the call was “surreptitiously” recorded. He argues that the widely publicized quotation, in which Trump demands that Raffensperger “find 11,780 votes” was taken out of context. He then states that “there was nothing untoward” about Trump’s language, given that the president simply “wanted signature verification to be done in public.”

The private call that was made public by others cannot really be the basis to claim the president intended to incite a riot because he did not publicly disclose the contents of the call,” Castor argued.

This is a bad argument for Castor. It causes him to quote repeated segments of a very damning tape. It does not establish that Trump’s request to find the specific number of votes was taken out of context. It does, rather, highlight more of his client’s misconduct.

Castor is now on to his closing remarks. He claims that “the only reason” he had to bring up the Raffensperger call in the Senate chamber was because “once again, the media and their Democratic allies distorted the true conversation to mislead you and the American public.” He asserts that this political distortion is not new; in fact, it is the very basis for the impeachment trial. According to Castor, the House managers’ “goal is to eliminate a political opponent, to substitute their judgement for the will of the voters.” At this point, the defense rolls another video compilation of Democratic lawmakers calling for the removal of Trump by impeachment so that he will never be able to run for office again.

Castor concludes with a warning that this trial “asks for constitutional cancel culture to take over in the United States Senate.” He addresses Democrats and Republicans separately, urging Democrats to “look to the principles of free expression and free speech” and asking the Republicans to “resist what will be an overwhelming temptation” to attempt to cancel and silence the opposing party when they are next in the majority.

Overall, it is a lousy presentation, but if its purpose is to give Republican senators a little more comfort in their commitment to acquittal, it is likely effective. In the recess before the senators get to ask their questions, Sen. Ron Johnson of Wisconsin seems ebullient, saying the president’s legal team “blew the house managers’ case out of the water.” Whether he actually believes this or whether it’s an act doesn’t really matter. It is the line. And it will be the line for more than enough senators.

The questioning period wraps up relatively swiftly. The following is a paraphrased list of the questions senators asked and the answers counsel gave:

  • Sens. Schumer and Feinstein ask the House managers: Would the Capitol riot have happened if not for President Trump?

Castro answers, in effect, no. Trump was a but-for cause of the events. Everything that occurred on Jan. 6 was “because of his doing. And although he could’ve immediately and forcefully intervened to stop the violence, he never did.”

  • Sens. Graham, Cruz, Marshall and Kramer ask the defense: Does a politician raising bail for rioters encourage more rioting?

Castor answers, “Yes.”

  • Sen. Warnock asks the managers: Did dozens of courts reject Trump’s efforts to overturn the election?

Raskin answers, that is true. But there is no problem that he challenged the election results in court, Raskin says. The problem arose when he stoked violence.

  • Sens. Collins and Murkowski ask the defense: Exactly when did Trump learn of the breach of the Capitol? What specific actions did he take to bring the rioting to an end, and when did he take them?”

Van der Veen answers that the house managers have given us no evidence to answer that question. It’s all just hearsay, he says.

  • Sen. Rosen asks the managers: Should President Trump have known his tolerance of anti-Semitic speech, hate speech, could have incited the violence on Jan. 6?

Plaskett answers, in short, that yes, Trump has a “pattern and practice of encouraging violence, never condemning it,” citing as evidence his implicit support for the Proud Boys and his verbal attacks on election officials. She says it’s not a coincidence those very same groups showed up on Jan. 6.

  • Sens. Scott and Hagerty ask the defense: Given that more than 200 people have been charged for their conduct on Jan. 6, isn’t this just a show trial?

Castor answers, in short, yes, it is.

  • Sens. Markey and Duckworth ask the managers the question previously asked to Trump’s defense team: Exactly when did Trump learn of the breach of the Capitol? What specific actions did he take to bring the rioting to an end, and when did he take them?”

Plaskett answers, “This attack was on live TV on all major networks in real time.” She argues that Trump knew the severity of the threat as it was going on but did not act to stop it.

  • Sens. Romney and Collins ask both sides: When Trump sent the disparaging tweet at 2:24 p.m. regarding Pence, was he aware that the Secret Service had removed Pence from the Senate chamber for his safety?

House managers answer first, with Castro stating that cable news had already shown that rioters were inside the building at this time. Trump was already being contacted by lawmakers who asked him to tell the rioters to stand down at this point, managers say.

Then, van der Veen for the defense states that “the answer is no,” claiming there is no evidence on the record here because the House rushed the article through without affording Trump due process.

  • Sens. Klobuchar, Casey and Brown ask the managers: You relied on past impeachment precedent such as Belknap. If we don’t convict Trump, what message will we be sending to future presidents and Congresses?

Plaskett claims that a failure to convict Trump will be devastating for the country. “Decisions like this will decide who we are as a people—who America is” as the world, and extremists, watch.

  • Sens. Lee, Hawley, Crapo and Portman ask the defense: Multiple state constitutions enacted prior to 1787 specifically provided for the impeachment of a former officer. Does this absence of language in the Constitutions indicate that the Framers did not intend to allow impeachment of former officials.

Van der Veen says, yes, the Framers absolutely discarded this option intentionally.

  • Sen. Padilla asks the managers: How did Trump’s claim of election fraud radicalize his followers?”

Castro answers that it was about the emotion. Trump spent months convincing his base that the election was stolen in order to inflame tensions. When one threatens the legitimacy of an American’s vote, one threatens that person’s voice. And people responded.

  • Sens. Hawley and Kramer ask both sides: If the Senate’s power to disqualify is not derivative of the power to remove, could the Senate disqualify a sitting president but not remove him or her?

Van der Veen for the defense responds first but does not address the question. He uses his time to claim that Castro was misrepresenting a quote by Trump to “fight to the death.”

Raskin responds for the managers, saying that under Article II, Section 4, a president who is in office must be removed, with or without disqualification. If he’s out of office, Raskin says, he can be disqualified without removal. Raskin states that these processes have always been treated as separate.

  • Sen. Warren asks the managers: Has raising objections to certifying the Electoral College in the past led to an insurrection?

Raskin answers in the negative.

  • Sen. Kramer asks the defense: How can Trump be anti-Semitic considering his pro-Israeli stance?

Van der Veen responds, accusing the managers of “doctoring the evidence.”

  • Sen. Sanders asks both sides: Did Trump win the 2020 election?

Plaskett responds for the managers. She says that, as we all know, and as the courts have proven, Trump lost the election.

Van der Veen answers for the defense, expressing concern about the question: “Who asked that? My judgment is irrelevant,” he states. His words are met with murmurs in the chamber.

  • Sen. Johnson asks both sides: Was the attack on the Capitol predictable? Why were Capitol law enforcement caught off guard?

Van der Veen responds first, saying that there’s “no due process at all” in this trial, meaning that he cannot deliver a clear answer to this prompt. But he notes that there was clearly some intelligence ahead of time indicating that it was coming.

Plaskett responds for the managers, stating that the defense counsel wants to blame everyone except Trump, but he is the one responsible.

  • Sen. Merkley asks the managers: If a president lies repetitively to voters and invites dangerous groups to D.C., can he be exonerated for inciting an insurrection because he said to “be peaceful”?

Castro answers, no. The occasional word to that effect does not absolve him from blame. He did not forcefully tell these people to immediately leave the Capitol. Castro notes that Trump used the word “peaceful” once during his speech on Jan. 6 and “fight” 20 times. Raskin steps up to add to the remarks, stating that if “you rob a bank but on the way out the door yell ‘respect private property,’ that’s not a defense.”

  • Sen. Cruz asks both sides: Where did the House managers derive their definition of a newly created legal standard for incitement? Using this proposed standard, is there any way for Kamala Harris, who encouraged followers to raise bail funds for rioters, not to be considered culpable?

Raskin responds that it is “unimaginable Harris would incite violence,” and, regardless, it’s an irrelevant question to the situation at hand. He claims that, based on the evidence, the House compiled the elements to show the most definitive proof that the president had intentionally engaged in an effort to enrage his base and push his supporters to violent action.

Van der Veen then responds for the defense, arguing that this “newly created Raskin Doctrine on the First Amendment” fails and that this body must instead follow the Brandenburg test, specifically.

  • Sen. Murray asks the managers: How was the president’s “remember this day forever” tweet relevant to his guilt?

Castro answers, saying that the tweet proves Trump acted intentionally to encourage violence that day. Trump didn’t call the Guard, he says. The tweet, which praises the riot, shows that Trump foresaw this was going to happen, helped to incite it over many months and ultimately “reveled in it” as it happened, according to Castro.

  • Sen. Cassidy asks both sides: Do Trump’s tweets and lack of response on Jan. 6 show that Trump was tolerant of the threat posed to Pence by rioters?

Van der Veen answers first, saying that it does not. He claims that he “disputes the facts that are laid out in the question.” He again states that this is a result of a lack of due process.

Raskin responds, saying that Trump’s counsel has no room to complain about due process because Trump refused to testify. Let Trump talk under oath, Raskin says, so we can hear what he did to protect Pence that day.

  • Sen. Manchin asks the managers: Would the president be made aware of intelligence regarding an attack on the U.S. Capitol? Would he be responsible for protecting the Capitol?”

Plaskett answers in the affirmative to both questions. The president is commander in chief, she says; he had full authority and responsibility to protect the Capitol and unrestricted access to intelligence briefings.

  • Sen. Sullivan asks the defense: What precedent does this trial set for due process?

Van der Veen responds that “due process is never discretionary” and alleges that the managers have engaged in “prosecutorial misconduct.” He argues that this could hurt minority political parties in the future and would go against our national values. And he states that the “due process part” of the trial “should be enough to give anyone who loves our Constitution and loves our country great pause to do anything but acquit.”

  • Sen. Blumenthal asks the managers: Did the Brandenburg case prohibit holding public officials accountable through the impeachment process for incitement of violence?

Raskin answers. He starts with the letter from 144 prominent law professors “across the ideological spectrum,” which claims that Trump is culpable even under the Brandenburg standard. He notes that this is true even if one ignores Trump’s dereliction of duty.

  • Sen. Marshall asks the defense: How did Trump singularly incite a riot if the riot had begun before the conclusion of his Jan. 6 speech?

Van der Veen answers. Yes, he says, the managers contradict themselves on this point. He then goes on to talk about the Brandenburg standard in response to Raskin’s prior remarks.

  • Sen. Van Hollen asks the managers to respond to the prior question.

Raskin answers. He opposes the counsel’s invocation of Bond v. Floyd, arguing that it is disrespectful to link Bond, an American hero, with the storming of the Capitol. Plaskett reiterates central claims from the managers’ arguments, that Trump summoned the mob and lit the flame on the Jan. 6 events.

  • Sen. Rubio asks both sides: What precedent does this case set for removing other former elected officials?

Raskin answers for the managers, stating that the “jurisdiction issue is over,” as the Senate already voted on it. And further, he states, President Trump committed his crimes and was impeached while he was in office, so there are no implications for former officials.

Van der Veen responds for the defense, stating that this could create a “slippery slope,” in which many former officials could be impeached. He argues that “Raskin can’t tell you on what grounds you acquit” and states that “if you believe there was no due process, that can be your reason to acquit” and if a senator believes there’s no jurisdiction, he can’t tell you not to vote on that basis.

  • Sen. Bennet asks the managers: What would have happened if elected officials had not upheld the lawful election of President Biden and the rule of law?

Castro responds, reminding senators of the “incredible pressure” that Trump put on election officials and recounting specific instances of reported intimidation. He ends on the note of precedent: If this conduct is not punished, someone will be enabled to do it again in the future.

  • Sen. Cornyn asks both sides: Isn’t a president subject to criminal prosecution after leaving office, even if those acts are committed in January?

Castor responds for the defense. He states that there is no such thing as a “January exception” to impeachment, as the Constitution makes it very clear that a former president is subject to criminal prosecution.

Raskin replies for the managers contending that the criminal prosecution serves a different purpose than impeachment. Impeachment is “not a vindictive power” but, rather, a power designed to “protect the republic.” He holds that the “January exception” is real if the Senate cannot try Trump, because there is a distinction between the deterrent of criminal prosecution and the protection of impeachment.

The questions are now over, and the trial wraps for the evening. The senators will reconvene on Saturday, apparently for closing arguments and a vote.

There are a lot of facts still in dispute, facts one might expect a trial to attempt to resolve. To name a few:

  • How completely did Trump abandon his duty to defend the Capitol in the hours between his speech and the securing of the building?
  • Did he really abandon his vice president to the mob and leave him for dead?
  • Was his primary concern that afternoon really pursuing his agenda of foiling the counting of the electoral votes, and was he really gleeful at the attack?
  • What do we really know about his intent?

The managers have by far the better of the arguments on these and other questions, yet nobody should feel comfortable that the points are well established in either direction. In a sane world, Saturday’s proceedings would thus see a motion to call witnesses on these points and enhance the record with firsthand testimony.

I have little confidence that this will happen. Both sides clearly want this over. There do not appear to be a significant number of votes in play. So it looks like things are going to wrap up.

It looks that way even though just after the proceedings conclude, new information leaked to CNN about just how bad Trump’s conduct was that day:

In an expletive-laced phone call with House Republican leader Kevin McCarthy while the Capitol was under attack, then-President Donald Trump said the rioters cared more about the election results than McCarthy did.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said, according to lawmakers who were briefed on the call afterward by McCarthy.

McCarthy insisted that the rioters were Trump’s supporters and begged Trump to call them off.

Trump's comment set off what Republican lawmakers familiar with the call described as a shouting match between the two men. A furious McCarthy told the then-President the rioters were breaking into his office through the windows, and asked Trump, “Who the f--k do you think you are talking to?” according to a Republican lawmaker familiar with the call.

But don’t look to this trial to tell you the story of what happened that day to McCarthy, to Pence, or from the perspective of the White House staffers surrounding Trump.

It’s time to move on.

Morning Briefing: February 13, 2021

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.
Tia Sewell is a former associate editor of Lawfare. She studied international relations and economics at Stanford University and is now a master’s student in international security at Sciences Po in Paris.

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