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Trump defense to cite ‘middle ground’ between election ‘fight’ and inciting insurrection

Republicans want defense to clarify Trump's intention behind his Jan. 6 remarks and timing of response to insurrection

Capitol Police officers enter the Capitol Thursday.
Capitol Police officers enter the Capitol Thursday. (Bill Clark/CQ Roll Call)

The case former President Donald Trump’s defense team will present Friday boils down to this: Trump made some inappropriate remarks, but none of his rhetoric, covered under the First Amendment, rises to the level of inciting the Jan. 6 insurrection at the Capitol. 

The House impeachment managers “built sort of a false dichotomy,” Trump attorney David Schoen told reporters after House impeachment managers finished presenting their case Thursday. “There’s no middle ground, there is no possibility of thinking what he said maybe, you know, was inappropriate.”

Schoen, arguing there is indeed a middle ground between inappropriate and incitement, focused on the comments Trump made at the “Stop the Steal” rally outside of the White House on Jan. 6, in which he urged his supporters to “fight like hell” as Congress began its joint session to certify the election results. 

“Under no circumstances could it be incitement,” he said. “It’s a powerful speech, but when he uses the word ‘fight’ most of the times during the [speech], 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.”

It’s unclear if the defense will address Trump’s rhetoric in the months leading up to Jan. 6, as the House managers did. But Alabama Sen. Tommy Tuberville, saying he is reserving final judgment until the end of the trial, said he thinks it’s unnecessary for them to address comments Trump has previously made.

“I don’t want to hear about any of that other stuff,” he said. “I want to hear about that day, was he right or wrong. Prove to me whether he was right or wrong.”

Clarifying the timeline

If the defense team sticks to the events of Jan. 6, they could fill in aspects that Republicans like Sen. James Lankford said the House managers glossed over. 

For example, the managers argued Trump didn’t make his first statement urging rioters to end the violence until two hours into the attack. 

“The first 45 minutes of that two-hour time clock, the president’s still speaking in the rally, because the first attacks happened when the president is actually still on the platform speaking,” Lankford said. 

“You’ve got the time for the president to actually get into the White House,” the Oklahoma Republican added. “And then the beginning part of all the attack, all the cameras are on the outside. People can’t tell what’s happening on the inside. And so [the managers] are showing cell phone video of what’s happening inside, saying, ‘This is what was happening.’ But no one knew that outside of this building.” 

Republican Sen. Bill Cassidy of Louisiana had a different take on the managers’ timeline, saying they laid out the events of Jan. 6 “with great care.”

He cited the manager’s argument that Trump during the attack was calling senators to try and get more GOP votes to decertify the election as something the defense needs to address. 

Burden of proof

The defense team is likely to argue that the House managers have the burden of proof.

“The evidence they have under no circumstances would make out a case for incitement,” Schoen said. “I thought that the argument we heard today from Congressman [Jamie] Raskin about what he understands the law to be was as dangerous a formulation as I’ve ever heard. I think it puts at risk every, every senator in that chamber and every politician who wishes to speak passionate political speech.” 

Sen. John Cornyn was dismayed at the managers’ legal arguments.

“We even heard the impeachment managers say the First Amendment doesn’t apply to a president, which is a pretty jarring argument,” the Texas Republican said. 

The managers spent much of their case presenting evidence of the rioters saying they were motivated by Trump. But Cornyn said the rioters’ states of mind is not what senators as jurors need to evaluate; it’s Trump’s intention behind his remarks.

“I think it was extremely reckless to do what the president did, not knowing who is in that group and what their motives might be,” Cornyn said. “And unfortunately, doing the trial this quickly without an adequate time for developing the record, it’s hard to say who’s responsible for what. They want to say it’s all on Trump, but I think the facts could be more complicated than that.”

Schoen said the defense will argue the manager’s case lacked due process and a factual record.

“They didn’t really put on evidence; they told a story,” he said. “And you have to accept everything that they said in their story. … To me that’s an offensive process.”

Flipping script on Democrats

Trump’s team has already signaled their plans to show video of Democratic politicians making comments calling their supporters to “fight” on various matters, like in the summer protests over racism after a Minneapolis police officer killed George Floyd. 

The defense already aired some video of that as the trial opened Tuesday. Wisconsin GOP Sen. Ron Johnson said he hopes they do more to show the managers’ case “has been completely one-sided.” 

“If you want to talk about incitement, what about the incitement for the last four years?” Johnson said. “What about the lack of condemnation, on the other side, when we saw thousands of peaceful protests and then a few hundred, a couple hundred of those that were pretty violent and very destructive and ongoing riots.” 

Schoen said “tremendous hypocrisy” will be part of the defense’s argument.

“If Donald Trump says something, it means this and they decide what it means. And if somebody else says something, that’s perfectly innocuous,” he said. 

Sen. Roy Blunt suggested the defense could use the violence that erupted during summer protests to show that the insurrectionists had a model for attacking government institutions.     

“I think context could be helpful of what others were saying over the course of the last year that was also reckless,” the Missouri Republican said. “Clearly attacking federal courthouses isn’t anywhere close to attacking the United States Capitol, but some discussion of the environment … all of those people had been watching.” 

‘Concise and clear’

Some of Republicans’ advice for the defense team was to avoid the rambling that Trump attorney Bruce Castor was heavily criticized for after Tuesday’s debate on the constitutionality of the proceedings.

“I would hope they would be concise and clear and walk through the facts,” Lankford said.

Maine Sen. Susan Collins suggested the prosecution set a high bar for the defense to meet.

“I hope they’ll be as specific as the House managers were, who went through the evidence, provided legal arguments and gave a very thorough presentation,” she said.

The defense team has already revealed plans to limit their presentation to less than eight hours on Friday, even though the procedures the Senate approved would allow them to extend their case into Saturday, for a total of 16 hours. 

Schoen said the defense hasn’t calculated exactly how long their presentation will last but predicted it would be “three to four hours, something like that.” 

That would be short enough to allow senators to proceed with questions and answers, the next step of the trial, on Friday, if Senate leaders want to keep the proceedings moving. Procedures the Senate adopted before the trial began Tuesday provide senators up to four hours to question both the prosecution and the defense. 

Schoen, who is Jewish and observes the Sabbath, likely won’t be around to help the defense team answer questions since he has already said he won’t work past 5 p.m. Friday or at all on Saturday. 

After the question and answer portion of the trial, the Senate could move straight to closing arguments and a vote if neither team requests to subpoena witnesses or documents or move to enter new evidence. None of those additional evidentiary steps are anticipated, with senators in both parties predicting the trial will end on Saturday. 

Most Democrats, who advocated calling witnesses in Trump’s first impeachment trial as a matter of fairness, have suggested this time is different, with senators themselves as witnesses to the insurrection.

Senate Majority Leader Charles E. Schumer and most of his caucus have deferred to the managers to decide whether they need to call witnesses, suggesting they’ll support whatever call their House counterparts make. 

The managers have not made a decision, wanting to see the case the defense makes first. But Rep. Madeleine Dean, one of the managers, signaled they likely won’t request witnesses. She told reporters she’s content with the case her team put forth.

“The American people witnessed this. The senators witnessed this,” the Pennsylvania Democrat said.

Schoen said it’s up to the senators to decide whether they want to hear from witnesses, but the defense has a list of potential witnesses prepared to counter any called by the prosecution.

Constitutional objection put ‘to bed’?

The prosecution expects the defense team to return to their argument that the trial is unconstitutional, despite Tuesday’s Senate vote affirming 56-44 that it has jurisdiction to try a former president. 

“We’ve put that jurisdictional constitutional issue to bed,” lead House impeachment manager Jamie Raskin said as he closed the prosecution’s case Thursday. “It is over. It’s already been voted on. This is a trial on the facts of what happened.”

Cornyn said he hopes the defense team provides a rebuttal to that argument that senators are now obliged to ignore their constitutional objections. Several Republicans took issue with Raskin’s argument there.

“It’s not irrelevant to all the senators, because this establishes a precedent,” Ohio Sen. Rob Portman said.

Although many Republican senators have said they won’t convict Trump because of their views the trial is unconstitutional, a few that voted that way Tuesday claim to be reserving judgement until the end of the trial. That includes Tuberville and Sens. Charles E. Grassley of Iowa and Jerry Moran of Kansas.

Still, the defense team would have to completely fumble their case for the greater number of Republicans who have already said they plan to vote to acquit Trump to reverse course.

“I can’t imagine that the president’s lawyers will manage to talk me out of that,” Blunt said. 

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