Day 4: The Defense Case

So, what would I say about the Trump defense presentation?  It went only only three hours and isn't really worth a blow-by-blow account, especially since a large part of the presentation consisted of showing the same videos over and over.  Their basic defense was that Trump gave a perfectly innocent speech calling on his followers to support voting reforms and primary challenges and that for inexplicable but definitely unrelated reasons a bunch of dangerous people attacked the Capitol at the same time.  

Also significant -- the Trump defense was a blatant appeal to partisanship. Lead counsel Micheel Van de Veen began:

The article of impeachment now before the Senate is an unjust and blatantly unconstitutional act of political vengeance. This appalling abuse of the Constitution only further divides our nation, when we should be trying to come together around shared priorities. Like every other politically and Joe motivated witch hunt the left has engaged in over the past four years, this impeachment is completely divorced from the facts, the evidence, and the interests of the American people.

There were references to "constitutional cancel culture," the "Democrat Party," and accusations that Democrats only object to challenging an election when Republicans do it.  There was also a concerted effort to tie Democrats to violence and disorder throught the Black Lives Matter riots and emphasize Trump's peaceful intentions by his frequent invocations of law an order.  The Trump team had three members -- Bruce Castor, David Schoen, and Michael Van der Veen, who did not participate in the jurisdiction argument.  All three showed a montage of Democrats making somewhat aggressive speeches supporting Black Lives Matter, juxtaposed against Trump endorsing "law and order."  At least two showed Democrats in Congress protesting Trump's 2016 victory and Biden gaveling them down.  And to prove that there was nothing sinister in Trump saying  “If you don’t fight like hell, you’re not going to have a country anymore,” they played an endless montage of Democratic politicians using "fight" in speeches.  The difference -- the Democrats were not giving directives to an angry mob!

The defense team did make a few substantive points as well.  Schoen argued that Trump had been denied due process.  The impeachment team presented footage they had not allowed the defense team to see and used hearsay from news stories, neither of which would be allowed in a criminal trial.  Castor advanced the argument further, saying that the minimal-to-no investigation done by the House did not meet even the minimal standards for a grand jury.  Schoen even accused the impeachment managers of doctoring tweets.  

And I am inclined to agree.  The impeachment introduced evidence that would not be admissible at a criminal trial. But other things were happening as well that would not be allowed at a criminal trial.  For one thing, almost all the "jurors" were also witnesses, which would never be allowed at an ordinary trial.  And some members of the Senate actually met with the defense team to plot strategy, a thing that in a conventional trial would land all parties in jail.

Van der Veen also continued the free speech argument.  He argued that the First Amendment applied to the proceedings.  I do not understand that at all.  He cited two Supreme Court cases holding that elective officials have free speech rights under the First Amendment.  Wood v. Georgia involved a sheriff being investigated by a grand jury attempting to sway them in ways that sounded very much like jury tampering, but the Supreme Court upheld his actions.  The other overruled the Georgia legislature's refusal to seat a member who encouraged burning draft cards.  I would need to read the decisions to know if Van der Veen is citing them accurately, but it seems a safe assumption that neither involved speaking to a mob that then attacked either the grant jury or the Georgia legislature.  Both Van der Veen and Schoen leaned heavily on Brandenberg v. Ohio, which sets the rules for when speech is considered criminal incitement. The speech  must (1) explicitly or implicitly encourage violence, (2) be intended to encourage violence, and (3) occur in a way that makes violence likely.  

Again, I don't know what sort of precedent has grown up surrounding Brandenberg, but clearly in the case of the Trump speech, context matters.  He had spent the last two months in an unprecedented attempt to overturn an election -- filing and encouraging outrageous lawsuits, asking state legislatures to overrule the popular vote, pressuring the Georgia Secretary of State to "find" enough votes to change the outcome, pressuring Congress to block swing state votes, and pressuring Mike Pence to take part. At the same time, he was warning his followers of the direst consequences if he were to lose.  His own team actually showed Trump boasting that he was unlike other politicians in that he did not concede but kept on resisting.  And telling an angry mob,  “If you don’t fight like hell, you’re not going to have a country anymore" really doesn't sound like encouraging his supporters to press for election reforms and mount primary challenges against any Republicans who do not support them.  It sounds -- especially in the context of the two previous months -- like a call to do something more immediate and urgent.  Something that would keep Donald Trump in office even as Congress was preparing to certify his defeat.  Brandenberg clearly allows months and months of agitation, so long as speech does not incite immediate violence.  Again, what I don't know is whether Brandenberg, or decisions following Brandenberg allow taking months of previous agitation into account.

And I suppose it should not come as a surprise that the Trump defense team made blatant appeals to partisanship, while the Democrats studiously avoided the subject.  Everyone knew that all Democrats and probably about five Republicans were going to vote for impeachment, while most Republicans would vote no.  The appeal was to the twelve most persuadable Republicans.  As we know, the impeachment team persuaded two.

Next up: Question and Answer session.