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4 Ways Trump’s Lawyers Challenged His Impeachment Charge

US President Donald Trump waves as he arrives at Palm Beach International Airport in West Palm Beach, Florida, Jan. 20, 2021.
US President Donald Trump waves as he arrives at Palm Beach International Airport in West Palm Beach, Florida, Jan. 20, 2021.

Following two blistering days of arguments by the House Democratic managers that former President Donald Trump instigated a violent insurrection at the U.S. Capitol on Jan. 6 and continues to pose a clear and present danger to democracy, the Trump defense team on Friday questioned the legitimacy of the impeachment trial, slamming it as “an act of political vengeance” driven by the Democrats’ anti-Trump animus.

“It’s about Democrats trying to disqualify their political opposition,” Trump lawyer Michael van der Veen told senators. “It is constitutional cancel culture.”

The question of whether the Senate can try to convict a former president has been debated ever since the House of Representatives impeached Trump last month, making him the first U.S. president to be impeached twice. Under the Constitution, conviction results in removal and disqualification from holding federal office in the future.

On the opening day of the trial Tuesday, Trump’s lawyers argued that the Senate has no authority to try a former president because the primary goal of impeachment is removal from office. But six Republican senators joined 50 Democrats to reject that argument, allowing the trial to proceed.

With Trump out of office, Democrats say they want the Senate to bar him from running for president again. What is more, Congressman Ted Lieu, one of the House managers, told senators on Thursday that they want to prevent the catastrophe of another Jan. 6 from occurring. The incident left five people dead, including a Capitol Police officer.

Impeachment Trial Renews Focus on Domestic Terrorism
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"I'm not afraid of Donald Trump running again in four years," Lieu said. "I'm afraid he's going to run again and lose, because he can do this again."

Here are four key issues raised in the trial and how Trump’s lawyers addressed them on Friday:

Was the attack preplanned? And, if so, does that fact exonerate Trump of inciting the attack?

The former president’s lawyers contended that the Jan. 6 attack was “preplanned and premeditated” by all manner of extremists and, therefore, it had nothing to do with Trump’s fiery speech earlier that morning near the White House.

“You can’t incite what was already going to happen,” van der Veen said.

Bruce Castor Jr., another Trump lawyer, asserted that the preplanning was “confirmed” by the FBI and the Justice Department. Neither agency, however, has publicly confirmed that it has reached any such conclusion, although the FBI last month said that the day before the attack, it had shared with law enforcement agencies unconfirmed online chatter about looming violence.

Spokespeople for the FBI and DOJ declined to comment when asked to confirm or deny Castor’s assertion and instead referred VOA to court filings related to the more than 200 people charged in connection with the Jan. 6 insurrection.

The documents offer some evidence that planning and coordination by members of the right-wing Proud Boys and Oath Keepers had begun weeks in advance. But even when the militants were making plans, they appeared to be doing so in response to Trump’s repeated call to arms.

For example, on Dec. 29, Jessica Watkins, an alleged member of the Oath Keepers who was arrested after Jan. 6, urged fellow militia members to travel to Washington, writing that “Trump wants all able-bodied Patriots to come,” according to court documents.

To further disassociate Trump from the riot, Castor claimed that a “full 45 minutes” before the former president started his speech on the morning of Jan. 6, “violent criminals began assembling at the U.S. Capitol.”

The House managers acknowledged this, but they were careful not to make Trump’s speech the centerpiece of the proceeding, contending that the Capitol riot was the inevitable consequence of a months-long campaign to undermine the election results.

“This attack would not have happened without him,” said House manager Stacey Plaskett, the delegate to the House of Representatives from the United States Virgin Islands' at-large congressional district.

At the same time, the House managers showed how some of the rioters acted in response to Trump’s exhortations. On Thursday, they played a video in which a rioter outside the Capitol shouts into a bullhorn, “We were invited by the president of the United States.”

Was Trump’s speech constitutionally protected?

The Trump defense team sought to rebut the core allegation against the former president: that the “insurrection” was the direct result of Trump’s long history of incitement of violence that culminated in his Jan. 6 speech, in which he urged his followers to “fight like hell” to stop Biden from becoming president.

Portraying Trump as a “law and order president,” the former president’s lawyers countered that Trump used the words “fight like hell” metaphorically, much as politicians of all stripes routinely do. They said Trump’s statements were protected free speech under the First Amendment of the U.S. Constitution.

To make the point, they showed a stream of video clips of Democratic politicians such as President Joe Biden, Vice President Kamala Harris and Sen. Elizabeth Warren using different variations of the expression – and stronger ones -- in the past.

“All robust speech should be protected, and it should be protected evenly for all of us,” van der Veen said.

Accusing the House managers of twisting Trump’s words, the former president’s lawyers said Trump used the word “fight” 20 times during his Jan. 6 speech, but the Democrats cited only two instances that fit into their narrative. Far from inciting violence, van der Veen argued, Trump exhorted his followers to march to the Capitol to “peacefully and patriotically to make your voices heard.”

What’s more, the Trump lawyers argued, the former president’s speech does not meet the constitutional test of incitement. The standard test requires in part that the speaker “explicitly or implicitly encourage the use of violence or lawless actions.”

“The reality is Mr. Trump was not in any way, shape or form instructing these people to fight using physical violence,” van der Veen said, contending that throughout his term in office Trump had denounced violence and lawlessness.

But what about free speech in impeachment proceedings?

Anticipating Trump’s First Amendment defense, the House Democrats argued this week that the amendment protecting free speech does not apply in an impeachment proceeding.

Van der Veen contended that denying Trump the right to free speech would be “plainly unconstitutional.” The Supreme Court, he said, has held that the First Amendment “protects elected officials,” citing two landmark cases.

Under the two rulings, Trump has “enhanced free speech rights” because “of the importance of political dialogue” for elected officials.

FILE - U.S. President Donald Trump looks on at the end of his speech during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, Jan. 6, 2021.
FILE - U.S. President Donald Trump looks on at the end of his speech during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, Jan. 6, 2021.

If Trump were not entitled to the First Amendment, he would be denied the right to counsel, another constitutional right, and would have to represent himself during his Senate trial, van der Veen said.

In an open letter issued last week and cited by the House managers, a group of nearly 150 law professors called Trump’s First Amendment defense “legally frivolous.”

What did Trump know about the riot and when did he know it?

The question, an echo of the 1970s congressional investigation into the Watergate scandal, came up throughout the trial and resurfaced during the question-and-answer period.

The House managers asserted that even after Trump learned that his supporters had breached the Capitol and threatened his own vice president, Mike Pence, he took no action to end the insurrection and instead continued to call sympathetic senators to block congressional certification of Biden’s victory.

The Trump lawyers dodged questions about when Trump learned the Capitol had been breached, blaming the Democrats for not doing a better job of investigating the attack.

In response to a question, Castor claimed that at “no point” was Trump informed that Pence was “in any danger.”