Trump’s impeachment lawyers lied about Capitol riots

WASHINGTON – During a three-hour presentation on Friday afternoon, former President Donald Trump’s lawyers downplayed the scope of the violent US Capitol insurrection on January 6 and presented false and misleading information about the disturbances.

The defense of Trump’s impeachment on Friday essentially boiled down to accusing Democrats of violating the former president’s freedom of speech rights under the First Amendment and taking his words out of context, denying that he meant it literally when he said to his supporters on January 6 to “fight like hell” just before the crowd came down to the Capitol and insisted that Democrats were hypocrites because they had also used the word “fight” in the past.

Trump’s lawyers tried to shift the focus from the hours of video and timeline reconstructions that the House’s impeachment managers had presented in the previous two days. They referred to a “small group” that “hijacked” the demonstrations on January 6 – more than 200 people were charged and police officials said there were hundreds of open investigations – and falsely suggested that the crowd was politically diverse. (The evidence overwhelmingly identified the participants as Trump supporters.) They downplayed the evidence that prosecutors and defense lawyers presented, directly linking the insurrection to Trump’s post-election conduct and his January 6 speech.

“The reality is that Mr. Trump was in no way instructing these people to fight or use physical violence,” argued attorney Michael van der Veen, noting that the former president also told his supporters that day to go to the Capitol and “make your voices heard in a peaceful and patriotic way”.

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In the prosecution documents, prosecutors established a pattern of Trump supporters explaining in their own words – through videos and social media posts, interviews with reporters and, in some cases, directly to the FBI – that they came to Washington, DC, at the request of the ex-president, prepared for a violent confrontation or were spoiled for a fight, and understood that they were following his directions and had his approval when they came down to the Capitol.

On Thursday, prosecutors described how Jessica Watkins, a member of the Oath Keepers militant group accused of conspiracy and other crimes in connection with the insurrection, was “awaiting guidance” from Trump after the election.

Instead, Van der Veen accused administrators of the House’s impeachment of trying to blame Trump “based on double-rumored statements by far-right groups based on no real evidence other than classification speculation.” He also falsely claimed that “the antifa leader” was one of the first people arrested on Capitol Hill. No one accused so far has been described by the government as a member of the antifa, let alone as a leader.

The lawyer did not specify who he was referring to – but shortly after the uproar, images of John Earle Sullivan began to circulate in the right-hand corners of the Internet. Sullivan, a Utah man who was arrested and charged with illegally entering the Capitol, was involved in organizing racial justice demonstrations in Salt Lake City, but said he is not affiliated with the antifa or Black Lives Matter. The Washington Post reported that activists in Utah suspected him and his motives. He also stated that he is not politically affiliated and that he was at Capitol filming the events as a journalist. The government disagreed with that last argument and presented quotes from videos in which Sullivan can be heard urging the troublemakers.

Van der Veen argued that it was “apparent that extremists of various political tendencies and beliefs pre-planned and premeditated” the attack. Prosecutors presented evidence that small groups of defendants planned the violence that day – but so far these defendants have been identified as Trump supporters, largely based on their social media posts.

Trump’s lawyers have devoted much of their presentation to arguments that the charges against the former president and the impeachment trial itself are unconstitutional. Van der Veen argued that First Amendment free speech protections should protect Trump. He furiously criticized a group of more than 100 constitutional scholars and lawyers who signed a pre-trial letter calling the First Amendment argument “legally frivolous”, calling it an “outrageous attempt to intimidate” Trump’s legal team.

The comprehensive legal precedent cited by Trump’s lawyers and the House’s impeachment managers is Brandenburg v. Ohio, a 1969 decision by the United States Supreme Court. Judges at the time drew a line between the speech of defense protected by the First Amendment – including hate speech and speech of defense of violence – and speech “aimed at inciting or producing imminent illegal action and it is likely to incite or produce such action”.

To reinforce his argument that Trump’s January 6 speech did not meet the legal standard to incite “imminent” violence and that the trial would set a dangerous precedent for impeachment against other elected officials in the future, the former president’s lawyers they devoted a significant amount of time to repeating Democratic video montages using the word “struggle”. The video, shown twice by the Trump team, lasted nearly 10 minutes and included clips of Democratic senators watching the trial; it included nearly two minutes of Senator Elizabeth Warren saying the word “fight” during her presidential campaign.

His lawyers also tried to contrast the January 6 violence and the widespread protests of Black Lives Matter during the summer of 2020. “Many Democratic politicians endorsed and encouraged the disturbances that destroyed vast areas of American cities last summer,” said van der Veen before showing images of Democratic politicians talking about protests.

Bruce Castor, another member of Trump’s legal team, repeated a statement he had made earlier this week that Trump and his legal team reported the January 6 violence. He concluded the presentation by arguing that the trial was an example of “constitutional canceling culture” and accusing Democrats of simply trying to silence protected speeches they disagree with. He also explained that they had decided not to use most of the 16 hours that they were given to discuss, so that the Senate could “take those hours back and use them to deliver COVID relief to the American people”

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Trump’s situation is unique in American history – he is one of three impeached presidents, the first to be impeached twice, and previous Senate trials have taken place while the president was still in office. But lawyers and Democratic impeachment managers have argued that there are historical precedents for trying an executive officer after he left the government. In 1876, then-Secretary of War William Belknap resigned shortly before being impeached by the Chamber for “criminally ignoring his duty as Secretary of War and vilely prostituting his high office for his desire for private gain”. He was tried and finally acquitted in the Senate.

The constitution does not directly address the question of whether a president can be removed during his term and tried in the Senate after leaving office. Lawyers are not united on how to answer this question – Trump has had some prominent supporters when it comes to his claim that the trial is unconstitutional – but the Congressional Research Service noted in a report on the subject last month that Democrats appear to be on a more solid basis, at least academically.

A legal scholar cited by Trump’s lawyers in his report said they incorrectly cited him as concluding that Trump could not be accused of impeachment. Brian Kalt, a professor at the Michigan State University School of Law, wrote a legal review article in 2001 about late impeachments and cited evidence from both sides. However, he made it clear in a Twitter topic on February 8, and in an article published in Slate the following day, that the article “favored late impracticality”.

Democrats managed to convince the majority of the Senate, including a handful of Republicans, to reject Republican Senator Rand Paul’s effort to prevent the trial from taking place on constitutional grounds. But the vote also showed Trump’s substantial support among the Republican Party and the enormous odds that Democrats face of obtaining the two-thirds majority needed to secure a conviction.

Article I of the Constitution gives the House of Representatives the power to impeach and the Senate the power to decide whether or not to condemn. He also describes the two possible consequences of a conviction: dismissal from office and disqualification from office in the future. Article II, for its part, which deals with the powers and functions of the Executive Branch, states that the president and other public officials “will be removed from office” if they are impeached and then convicted of “Treason, Bribery or other Crimes” Serious and Misdemeanors. ”

Trump’s lawyers argued that Article II’s reference to removal as a result of impeachment renders the trial unconstitutional: because Trump is no longer in office, he cannot be removed.

But Democrats and constitutional scholars have rejected this, saying that Article I does not contain language that restricts the Senate to only judge acting presidents, unlike previous ones. Article II makes it clear what the basic punishment for the conviction is, these scholars say, not that the Senate cannot hold a trial if removal is no longer an option.