The legal team for former President Donald Trump makes their opening arguments in his second impeachment trial on Friday — and they are expected to allege that Democrats are being hypocritical by saying that Trump incited the Capitol mob by telling his followers they have to “fight” against a “stolen election.”
They’re likely to point out past instances when Democrats have used combative rhetoric, playing videos similar to how the House impeachment managers used video of Trump speaking to make their case against him.
Trump’s attorneys are also expected to argue, as they previewed in briefs submitted to the Senate, that the House impeachment managers are taking Trump’s words out of context as they aim to get 67 senators to vote to convict him of inciting an insurrection.
“I think you’ll at least be moved by what you see and get a much better picture of exactly what’s going on here and the hypocrisy in some of the positions taken by the House managers in this case,” Trump lawyer David Schoen said on “America Reports” Thursday.
“They built a sort of a false dichotomy here. Either you condemn what he said and … find him guilty or there’s no middle ground. There’s no possibility of thinking what he said maybe was inappropriate,” Schoen added later Thursday evening after meeting with a handful of Republican senators. “But when you use the word ‘fight,’ most of the times during the case, it’s clear he’s talking about legislators fighting for our rights, people fighting to advocate. And, you know, everyone likes to overlook the word peacefully in there.”
Sen. Ted Cruz, R-Texas, along with Sens. Lindsey Graham, R-S.C., and Mike Lee, R-Utah, met with Trump’s lawyers on Thursday. Cruz alluded to a similar argument.
“The House managers focused a great deal on the president, using words like ‘fight’ or ‘fight like hell,'” Cruz said. “Well, if that constitutes incitement, then every single political candidate in America is guilty of incitement, because I guarantee you all 100 senators in that chamber have stood on the stump and said we need to ‘fight’ or ‘fight like hell.'”
Democratic elected officials who’ve previously used objectionable rhetoric who are expected to be featured on Friday may include Reps. Maxine Waters, D-Calif.; Ayanna Pressley, D-Mass.; and House Speaker Nancy Pelosi, D-Calif., among others.
Meanwhile, speculation among those involved is that the impeachment trial could end sometime before the end of the weekend — potentially Saturday or even earlier. That would require the Trump lawyers to wrap up a brief presentation Friday and for the Senate to blow through the remaining procedural hurdles between them and the end of the trial.
“We’re hoping they — the thing concludes by Saturday,” Sen. John Cornyn, R-Texas, said Thursday.
“We were talking earlier, maybe … three or four hours, something like that,” Schoen said of his planned Friday presentation when speaking to reporters Thursday.
One of those hurdles is whether there will be witnesses in the trial. The House impeachment managers have left the door open to asking the Senate to subpoena witnesses, but they have continued to refuse to confirm that they will bring witnesses.
“I’ll just say you’re going to see a devastating case against Trump in the managers’ presentation in the coming days,” a senior aide on the House impeachment managers team said Tuesday when asked about witnesses.
“The American people with this … The senators witnessed this,” said impeachment manager Rep. Madeleine Dean, D-Pa., when asked about witnesses Thursday.
This is a stark break from Democrats’ comments during Trump’s previous impeachment trial. Last year, they alleged that Senate Republicans were holding a sham trial because they refused to bring witnesses despite weeks of hearings and depositions in the House of Representatives that created a record on the Ukraine matter Trump was impeached over.
“Whoever heard of a trial without witnesses and documents? It’s unprecedented,” now-Senate Majority Leader Chuck Schumer, D-N.Y., said on Jan. 7, 2020.
The Trump team lawyers on Friday will also be aiming to redeem themselves after a widely panned performance Tuesday. Attorney Bruce Castor gave a meandering speech as the Senate was considering the constitutionality of impeachment. Several GOP senators, including Graham and Sen. Bill Cassidy, R-La., said Castor’s performance was weak. Cassidy himself switched his vote from previously saying that the impeachment trial was unconstitutional to saying that it is constitutional due to the Tuesday arguments.
“If anyone disagrees with my vote and would like an explanation, I ask them to listen to the arguments presented by the House Managers and former President Trump’s lawyers,” Cassidy said in a statement. “The House managers had much stronger constitutional arguments. The president’s team did not.”
It’s also possible the Trump legal team could debut Philadelphia personal injury attorney Michael T. van der Veen, who joined the team in recent days, in a presenting role Friday.
Trump’s lawyers will likely also revisit the constitutionality argument on Friday even though that issue was settled on a vote Tuesday. All they need is to prevent 17 GOP senators from voting to convict — only 6 of them voted on Tuesday that the trial is even allowed to happen.
Democrats attempted to preempt this argument Thursday. House manager Rep. Jamie Raskin, D-Md., implored senators to “focus like a laser beam on the facts and not return to the constitutional argument that’s already been decided by the Senate. Just as a defense lawyer who loses a motion to dismiss on a constitutional basis in a criminal case must let that go.”
The Trump team is also expected to explain that Trump’s speech on Jan. 6 was protected speech under the First Amendment and that the House did not provide Trump with sufficient due process.
“The Senate, in reviewing the House actions, should immediately dismiss this case because the process was completely unfair and one-sided,” Schoen, Castor and van der Veen said in a brief. “Throughout this entire process Speaker Pelosi was never acting to apply her understanding of the laws of impeachment in any principled manner. The Speaker did not think it was necessary to call for an impeachment so long as she got her way, and twice told the Vice President, and the country, just that.”
“President Trump’s speech at the January 6, 2021 event fell well within the norms of political speech that is protected by the First Amendment,” the lawyers also said. “The Supreme Court of the United States has long held that the First Amendment’s right to freedom of speech protects elected officials such as Mr. Trump. The House Managers’ argument to the contrary both ignores well-established precedent and erodes the constitutional principles guiding this august body.”
Trump’s team is also expected to argue that the impeachment article alleges too many smaller offenses against the president and should have been broken up into several articles instead of just one.
“Because the Article at issue here alleges multiple wrongs in the single article, it would be impossible to know if two-thirds of the members agreed on the entire article, or just on parts, as the basis for vote to convict,” the Trump team’s pre-trial brief says.
Trump’s current impeachment was spurred by the Jan. 6 riot at the U.S. Capitol. Trump, after months of making false claims that he’d won the presidential election, held a rally in Washington, D.C., with his supporters on the same day Congress and then-Vice President Mike Pence were meeting in a joint session to certify the results of the election. That day, a mob of Trump supporters stormed the Capitol, forcing Pence and hundreds of lawmakers into hiding as they interrupted the election certification.
Trump, at the rally, repeated his false election claims and he and advisers used pitched rhetoric, riling up the large crowd. Trump at one point during the rally told his followers to “peacefully and patriotically” march to the Capitol, a comment his defenders point to as part of the reason why he does not bear responsibility for the ransacking of the Capitol.
But House impeachment managers are arguing that one comment does not cancel out the balance of Trump’s other comments in that speech or in the proceeding months. They say the former president is fundamentally responsible for the Capitol riot and that it was foreseeable that his words and actions would have led to the Jan.6 violence.