The topic of discussion for this Constitution Monday is the second Senate impeachment trial for former President Donald J. Trump. The impeachment managers from the U.S. House of Representatives presented their case for the impeachment on Tuesday and Wednesday last week. The lawyers defending Trump presented their defense on Thursday and Friday. The final vote was taken on Saturday – 57 for conviction and 43 for acquittal with 67 needed to convict.
The defense on Friday rebutted the single charge of incitement to insurrection in connection to the riot that took place at the Capitol on January 6. The reason for the trial for a President who has already left office is to disqualify him from being elected to any future federal office. In other words, the Democrats want to stop Trump from running for President of the United States for a second term. Fred Lucas at The Heritage Foundation, assisted by Ken McIntyre, discussed seven highlights from the Team Trump defense.
The first highlight is “Can’t Incite What Was Already Going to Happen.” Trump lawyer Michael van der Veen used video of several news reports to show that the riot was preplanned in the days and weeks prior to January 6. Then he argued that the preplanning was proof that the rioters were not inspired by the words of Trump. Van der Veen stated, “The criminals who infiltrated the Capitol must be punished to the fullest extent of the law” and then added the following:
They should be in prison for as long as the law allows. The fact that the attacks were apparently premediated – as alleged by the House managers – demonstrates the ludicrousness of the incitement allegation against the president. You can’t incite what was already going to happen.
Highlight #2 is “No Human Being Seriously Believes” the claim of incitement to insurrection because Trump’s words were “ordinary political rhetoric.” House managers claimed that Trump’s words – “If you don’t fight like hell, you’re not going to have a country anymore” – incited the riot. Van der Veen did not accept the claim.
This is ordinary political rhetoric that is virtually indistinguishable from the language that has been used by people across the political spectrum for hundreds of years…. Countless politicians have spoken of fighting for our principles. Joe Biden’s campaign slogan was “Battle for the Soul of America.” No human being seriously believes that the use of such metaphorical terminology is incitement to political violence.
The third highlight is the “Democrats’ Violent Rhetoric.” The House managers showed videos of Trump speaking interspersed with the riot taking place at the Capitol. For the defense, Trump’s lawyers showed videos of numerous Democrats using the words “fight” or “fight like hell” while seeming to condone or even call for violence. Van der Veen explained that the Democrats’ words and actions were worse than those of Trump and even appeared to encourage riots over the past summer.
While the president did not engage in any language of incitement, there are numerous officials in Washington who have indeed used reckless, dangerous, and inflammatory rhetoric in recent years.
When violent, left-wing anarchists conducted a sustained assault on a [federal] courthouse in Portland, Oregon, Speaker [Nancy] Pelosi did not call it an insurrection. Instead, she called the federal law enforcement officers protecting the building “storm troopers.” When violent mobs destroyed public property, she said, “People will do what they do.” …
This unprecedented effort is not about Democrats opposing political violence. It is about Democrats trying to disqualify their political opposition. It is constitutional cancel culture. History will record this shameful effort as a deliberate attempt by the Democrat Party to smear, censor, and cancel not just President Trump, but the 75 million Americans who voted for him.
Highlight #4 is “Democrats’ Objections to 2016 Outcome.” House managers called Trump’s challenge to the 2020 election results “the big lie,” and said that it was unprecedented. Trump’s legal team reminded them that Democrats refused to accept the 2016 election results when Trump won. Democrats even tried to have the election outcome overturned by the Electoral College. Democrats claimed for four years that Trump was an illegitimate president. Trump lawyers showed video of Democrats objecting to State results in January 2017.
The fifth highlight is “First Amendment and Public Officials.” Lawyers emphasized that Trump was still speaking near the White House when the riot broke out at the Capitol. They stressed that his speech was protected under the First Amendment, and they cited three separate Supreme Court cases to support their claim. In a 1969 ruling in Brandenburg v. Ohio, the Court established the definition for speech inciting violence. Lucas summarized the ruling as follows: “the government can’t prosecute unless the speech is directed at inciting violence, poses an imminent threat of violence, and that violence is likely to occur.”
Trump attorney David Schoen explained as follows: “The Supreme Court ruled in Brandenburg that there is a very clear standard for incitement…. In short, to paraphrase, whether the speech was intended to provoke imminent, lawless action, and was it likely to do so.” Schoen quoted Trump as saying, “Go to the Capitol and cheer on some members of Congress, but not others.” Then he said, “They know it doesn’t meet the standard for incitement…. So, they edited it down [in their video exhibit].”
Attorney Van der Veen used two cases from the Supreme Court dealing with the First Amendment rights of a public official. The two cases are Wood v. Georgia (1962) and Bond v. Floyd (1966). Both cases assert that the speech of public officials has protection by the First Amendment. In the first case, a sheriff publicly mocked the proceeding of a grand jury and was cited for contempt of court. The court determined that the sheriff was exercising his freedom of speech, which did not affect his job. In the second case, a newly elected lawmaker opposed the draft and the Vietnam War, and the Georgia legislature refused to set him. The court held that the duly elected lawmaker had the right to express his point of view and should be seated. Van der Veen concluded with this statement: “The Constitution and the First Amendment must certainly apply to these impeachment proceedings, and Mr. Trump’s speech deserves full protection under the First Amendment.”
Highlight #6 is “Trump’s Call for Peace.” Trump’s third lawyer, Bruce Castor, noted some timelines. Trump ended his speech at 1:11 p.m. and tweeted this message to supporters at 2:33 p.m.: “Stay peaceful.” He also noted that Trump mentioned the summer riots:
If this happened to the Democrats, there would be hell all over the country…. But just remember this, you are stronger, you are smarter, and you’ve got more going than anybody. And they try to demean everybody having to do with us. And you are the real people. You are the people who helped build this nation. You’re not the people who tore down this nation.
Castor asked the Senators a question: “Is it possible that President Trump’s disdain for political violence could be any clearer to the persons listening as he was speaking? Is it possible that his words could have been misunderstood?” He continued:
The president asked that the attendees at his rally “peacefully” make their voices heard….
The managers would have you believe that the president’s supporters usually follow his every word, but in this case, imputed some imaginary meaning to them, while ignoring his most clear instruction.
President Trump told them to “peacefully and patriotically” make your voices heard, and the House managers took from that: “Go down to the Capitol and riot.”
Castor was not through yet and questioned the term “insurrection” – the word used in the impeachment charge. “They continue to say ‘insurrection.’ Clearly, there was no insurrection.” Then he explained why there was no insurrection.
Insurrection is a term of art. It’s defined in the law. It involves taking over a country, a shadow government, taking the TV stations over, and having some plan on what you’re going to do. What our colleagues here across the aisle meant is incitement to violence. So, the word incitement is critical to the case.
The Trump attorneys referred to the way that the House managers took Trump’s comments out of context. Then they proceeded to show video clips showing the House managers’ video side-by-side with the actual words of Trump in full. Van der Veen stressed that the single article of impeachment was for “incitement.”
To claim that the president in any way wished, desired, or encouraged lawless or violent behavior is a preposterous and monstrous lie…. In fact, the first two messages the president sent vi Twitter once the incursion of the Capitol began were “Stay peaceful” and “No violence because we are the party of law and order.” The gathering on Jan. 6 was supposed to be a peaceful event. Make no mistake about that.
The seventh and last highlight is “’Rush to Judgment’ and Due Process.” Schoen
focused on the lack of due process for Trump – shown by both the House’s impeachment and the Senate’s trial. “The hatred that the House managers and others on the left have for President Trump has driven them to skip the basic elements of due process and fairness.” There was, however, a larger problem: the lack of operation for Trump’s attorneys to review the integrity of the evidence.
On Wednesday of this week, countless news outlets repeated the Democrat talking point about the power of “never-before-seen” footage. Let me ask you this: Why was this footage never seen before? Should the subject of an impeachment trial, this impeachment trial, President Trump, have the right to see the so-called new evidence against him?
More importantly, the riot and the attack on this very building was a major event that shocked and impacted all Americans. Shouldn’t the American people have seen this footage as soon as it was available? For what possible reason did the House managers withhold it from the American people and President Trump’s lawyers? For political gain? How did they get it? How are they the ones releasing it?
Those are all good questions. Will the answers be forthcoming from the Democrats, or will they continue to hide the truth from the American people?