Daily Archives: February 14, 2021

Democrats took aim at the Trump legal teams expected First Amendment defense, saying it has no basis in the evidence.

Watch Raskins remarks in the player above.

Lead House Impeachment Manager Jamie Raskin argued in the Senate trial that there is a First Amendment defense against the impeachment charge is absurd.

Futher, Raskin said, The First Amendment does not create some superpower immunity from impeachment.

Thursdays session follows the previous days raw and visceral video of last months deadly insurrection.

Though most of the Senate jurors seem to have made up their minds, making Trumps acquittal likely, the never-before-seen audio and video released Wednesday is now a key exhibit in Trumps impeachment trial as lawmakers prosecuting the case argue Trump should be convicted of inciting the siege.

Trump lawyers are expected to will argue Friday that his words were protected by the Constitutions First Amendment and just a figure of speech.

Excerpt from:
WATCH: Trump not protected by First Amendment for inciting insurrection, Rep. Raskin says - PBS NewsHour

The response to my column about what to do with police officers who participated in the Trump rally on January 6 was immediate and intense. And whats clear so far is that the dozens of law enforcement agents who traveled to the nations capital that day to support or witness an insurrectionists cause will long be tagged by it. Some may get charged with a crime. Some may be fired. But even those who keep their jobs will face credibility questions for the rest of their professional lives. They will forever be the cops who traveled miles to gleefully participate in a potentially dangerous event based on a monstrous lie.

The gist ofmy February 1 pieceis that there is really only bad news and worse news for these cops. Either they were insurrectionists, in which case they have no right to wear a badge, or they were too foolish to heed all of the warnings about potential violence in Washington that day, in which case they really have no right to wear a badge. What actually happens to these officers, however, turns both on law and local politics or more precisely, the politics of local policing. It figures that it would be harder for a cop to come home from the Trump rally to a blue country than a red county, right? But well see.

The legal answers will come from the text of the First Amendment. Some cops who are fired are going to sue to get their jobs back by saying they were illegally retaliated against for exercising their free speech rights. They will say that even public employees government employees have certain First Amendment rights. They do! But those civil lawsuits will turn on whether the rights of those cops to attend Trumps rally outweigh the interests their police departments have in ensuring public confidence in the competence of officers, including the officers ability to easily distinguish uncontroverted evidence from baseless conspiracy theories.

Thats how the legal case will play out. Whats a little clearer now is what the politics of it will look like. Law enforcement agents who attended the rally and the ensuing riot will be fired, whether or not they are criminally charged. Those officers who attended the rally but left before the riot will likely keep their jobs unless their social media profiles from before the rally, or their comments after it, make it clear they are a discredit to their departments. But even those cops who attended the rally and left before the riot and dont have Facebook walls full of white supremacist junk arent easily going to be able to shake their link to the Capitol riot.

The two most interesting reactions to my piece dovetail together and are worth mentioning. One law enforcement source told me that police officials in some jurisdictions will be willing, if not eager, to fire or discipline officers who were at the rally but not involved in the riot if their participation that day was part of a broader pattern of support for racist causes or sedition. Another source a few actually wondered whether police officials would be scared to look too closely under such rocks given howextensivethe links seem to be between law officers and right-wing groups. I mean, thats the heart of the problem to begin with, isnt it?

We are seeing a form of this situationunfold alreadyin Franklin County, Kentucky, home to the state capital, Frankfort. Jeff Farmer, a sheriffs deputy, proudly attended the Trump rally and now has come home to controversy. Even before the insurrection and coup attempt in Washington, even before the protests last summer in Frankfort over police brutality, Farmers conduct as a cop had attracted the attention of local civil rights leaders and defense attorneys for what they consider misconduct, ranging from use of excessive force to discriminatory practices.

When word got out that Farmer had attended the Trump rally and it wasnt as though he felt he needed to hide the news Franklin County Sheriff Chris Quire was forced to launch an investigation that has roiled the county. On the one side are Farmers many supporters, on the force and in the community, who say hes a good cop who has done a great deal to apprehend drug dealers. On the other side are those who see in Farmers Trump-infused journey to Washington as further proof that his professional judgment, at a minimum, should be called into question. Cops have constitutional rights,remember, but there is no constitutional right to be a cop.

Nathan Goodrich, an attorney who runs the public defenders office in Franklin County, put it well last week in aninterviewwith Jon Schuppe of NBC News. Goodrich has clients whose lives have been directly impacted by Farmers work. The march was based on a lie stop the steal, the election was stolen, Goodrich said. So much of Deputy Farmers work as a detective is determining when people are telling the truth and lying to him. It raises questions about his ability to do his job as a detective when hes engaged in a rally in support of a belief that so many members of the community believe is utterly without support.

Farmers story so far suggests he is hewing to the same line weve seen expressed by cops in several other cases in which theyve been questioned about their roles in Washington on January 6. But Farmers story suggests more, too. During his trip, he documented his arrival with friends on Facebook, and after the siege wrote a post in which he called the rioters idiots and questioned whether they were really Trump supporters. Its that last part that ought to trouble the sheriff and the residents of the county. And if I were Goodrich and company, its that last part Id want to ask Farmer about under oath.

It was beyond a reasonable doubton the day of the riotthat most if not all of the rioters were Trump supporters. That was clear during the rally that preceded the riot, it was clear as the siege was unfolding and we all could see the harrowing images from inside the Capitol, and it was clear in the immediate aftermath of the attack, even before federal law enforcement officials started arresting and prosecuting right-wing extremists involved in the insurrection. For a cop not to see that, or to see it and pretend otherwise, goes to the very heart of what it ought to mean to be a cop: Seek the truth. Follow the evidence. Stay clear of the crap.

I hope that the sheriff is asking tough questions of Farmer in Franklin County. And I hope that Farmer is answering them candidly. The more we hear about the coordination that took place in advance of the riot, the more we hear about all the threats that preceded the rally, the more it becomes clear that no law enforcement agent should have been near that rally that day as a private citizen. Whether Farmer loses his job or not, and today I have no reason to believe that he will, its going to be virtually impossible for him to go back to his pre-riot days. His community will never see him the same way again. Maybe it was all worth it. I would want to know that, too, if I were a public defender.

In the same way that prosecutorskeep lists of police officerstheydont trust to testify, there will now be a new list of cops whose credibility may legitimately be questioned about January 6 if they are ever called as a witness in a future criminal case. Only this list wont be the secret purview of prosecutors and police union officials. It wont be the subject of countless years of litigation. One day very soon (if it hasnt already happened), there will be a crowdsourced, publicly available database containing the names of every law enforcement agent associated in any way with the Trump rally or deadly riot that followed.

That will be a great day. Every cop who believes today that Trump won the election, or who believed it on January 6, should have to answer for that belief all the rest of their days in uniform. They should have to answer it in courtrooms under oath in front of juries. And in conference rooms during sworn depositions. They should have to answer it during public press conferences. It should cast a pall on everything they touch in their professional lives. We talk a lot about police accountability and about how we are going to root conspiracy theories and white supremacy out of law enforcement. Heres one way to begin doing that.

The views expressed are the authors own and not necessarily those of the Brennan Center.

Read more here:
The Insurrection, Police Accountability, and the First Amendment - brennancenter.org

According to the logic of a bill currently under consideration in the Missouri House, a churchs religious freedom rights should be overruled since some people may want to show up with a gun. Rep. Ben Baker (R-Newton) argued during a House General Laws Committee hearing Monday (Feb. 8) that a persons natural right to a gun should supersede a religious communitys right to adopt and communicate its beliefs. As a Baptist minister, I find this bill unnecessary, unconstitutional, and dangerous.

Missouri law currently automatically bans concealed weapons from houses of worship unless an individual receives the consent of the minister or person or persons representing the religious organization that exercises control over the place of religious worship. This makes sense. A religious community should be able to define for itself if they desire for individuals to bring guns into their holy place.

But Bakers HB 359 would switch the default position so that individuals with a concealed carry endorsement or permit could automatically bring a firearm into a house of worship unless that religious group posted significant signs at every entry. A church, synagogue, mosque, or other house of worship would not be able to determine its own policy regarding concealed guns without either accepting weapons or posting government-mandated signs on their sacred space.

The Second Amendment should not trump the First Amendment. Some groups hold deep religious convictions that lead them to oppose violence and weapons of any kind. Thus, Missouri legislators should reject a bill that targets those sincerely-held religious beliefs.

Oddly, Bakers bill only attempts to change the status of houses of worship, meaning many other locations would remain places where one cannot bring a concealed weapon without proper consent like a liquor store or a riverboat gambling operation or an amusement park. So, Bakers bill acknowledges by default that limitations on concealed carry do and should exist.

If passed, this bill would give liquor stores, gambling boat operations, and amusement parks more rights than churches to decide about guns on their premises even though houses of worship are protected by the First Amendment more than those entertainment businesses. This targeting of religious communities is wrong.

Theres not even a reason for Bakers bill because people can already bring their concealed weapons into churches. Baker admitted during testimony that he does since his pastor allows it. A member of the committee even said he used to preach from a pulpit with a concealed gun strapped on. If a religious community wishes to allow concealed weapons, they already have that right. And if a house of worship doesnt want weapons in their building, someone who disagrees with that decision is free to worship elsewhere.

The provision in Bakers scheme of allowing a house of worship to ban guns by posting signs actually creates even more problems. Controlling the welcome message that congregations would have to post in prominent locations invites constitutional challenges. In fact, then-St. Louis Catholic Archbishop Robert J. Carlson threatened to sue if a similar bill passed in 2018.

Pastors, rabbis, and religious leaders should not be compelled by the government to place signage in our sacred places prohibiting activity we may not want to allow on our own private property, he said at a press conference with Jewish, Baptist, Episcopalian, Lutheran, Methodist, and other religious leaders.

Despite the overwhelming opposition from faith communities across the state, this bad bill keeps popping back up. Among the 40 people who submitted official testimony against Bakers bill for Mondays hearing were Baptist, Episcopalian, Methodist, and Presbyterian ministers; a Jewish rabbi; a representative from the Missouri Catholic Conference; and several others who identified themselves as a member of a religious congregation. And Ive heard from pastors across the state who find this bill an offensive assault on their rights.

But Baker couldnt name a single denominational group in the state supporting his measure. His faith in guns should not veto the clear public witness of numerous faith leaders. Bakers remedy is clearly worse than the disease that isnt even an ailment.

We have enough real problems for lawmakers to tackle this session without them trying to push guns into houses of worship. So, I pray they will defeat this dangerous bill.

Rev. Brian Kaylor is editor of Word&Way and associate director of Churchnet (a statewide Baptist network of churches).

See original here:
Opinion: Guns shouldn't trump the First Amendment - The Missouri Times

By Noah Feldman / Bloomberg Opinion

The extended trial brief filed by Donald Trumps lawyers advances three defenses: that Trump did not incite the Jan. 6 attack on the Capitol; that the Senate cant try a president who is no longer in office; and that the First Amendment protects Trump from being impeached for words that, they say, dont meet the requirements for criminal incitement conviction laid down by the Supreme Court.

The factual defense is highly unconvincing, as anyone who watched Trumps speech on Jan. 6 and saw the attack can attest.

The argument that the Senate lacks jurisdiction over a president who is out of office is disproven by history and Senate precedent.

The free speech argument is also wrong in a basic sense: The First Amendment prohibits Congress from making any law abridging freedom of speech. But this doesnt apply in impeachments any more than the Sixth Amendment right to a jury trial would apply to the Senate impeachment trial.

Yet the First Amendment defense requires deeper engagement than the other two, if only because it is less absurd. If it did apply to impeachments, the Supreme Courts incitement jurisprudence contained in the famous 1969 case of Brandenburg v. Ohio probably would have protected Trumps speech.

The major component of Trumps argument is that the First Amendment applies to elected officials. As the lawyers put it only a little ungrammatically, the fatal flaw of the Houses arguments is that it seeks to meet out governmental punishments impeachments based on political speech that falls squarely within broad protections of the First Amendment.

To support their argument, Trumps lawyers cite Wood v. Georgia and Bond v. Floyd. Both are important Supreme Court cases, but neither proves that the First Amendment should apply to impeachment.

The 1962 Wood case arose when a local Georgia judge impaneled a grand jury and charged it to investigate supposedly suspicious block voting by African-American citizens. (Think of it as a precursor to todays false allegations of election scams, but in the context of the civil rights movement.)

While the grand jury was sitting, the local sheriff denounced the whole charade, telling the press that Whatever the Judges intention, the action will be considered one of the most deplorable examples of race agitation to come out of Middle Georgia in recent years . This action appears either as a crude attempt at judicial intimidation of negro voters and leaders or, at best, as agitation for a negro vote issue in local politics. The judge responded by holding the sheriff in contempt of court.

In an opinion by Chief Justice Earl Warren (not Justice William Brennan, as Trumps lawyers say), the court held that the contempt order violated the sheriffs free speech rights. The statement hadnt interfered with the sheriffs performance of his duties, the court explained, and added, The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance.

This decision was about a judicial act the contempt order that would have imprisoned the sheriff. It had nothing to do with impeachment. It certainly shows that public officials possess First Amendment rights. Trump does, too. But that means only that he cant be criminally prosecuted for protected speech, not that he cant be impeached for inciting the Capitol attack.

The Bond case, in 1966, involved an attempt by the Georgia legislature to refuse to seat the civil rights activist Julian Bond when he was elected to that body. The legislature claimed that, because Bond opposed the Vietnam War and the draft, he could not have sincerely taken his oath to support the Constitution and laws of the United States. In another opinion by Chief Justice Warren (also misidentified by Trumps lawyers as Justice Brennan), the court explained that free speech applies not only to the citizen-critic but also to an elected legislator.

The ruling that the Georgia legislature could not keep Bond from taking office does not suggest that the First Amendment prohibits impeachment for Trumps incitement. The Georgia legislature wasnt impeaching Bond. It was making up a reason to exclude him from serving in the first place; conduct outside the bounds of its authority.

Apart from the moral outrageousness of comparing Donald Trump to Julian Bond, the citation seems meant to create a supposedly liberal argument for applying the First Amendment to Trump. (Maybe thats also why Trumps lawyers wanted to invoke Justice Brennan, even though he didnt write either of the opinions.)

That effort is unavailing, or should be. A robust commitment to free speech doesnt require protecting from impeachment a president who uses words in an attempt to destroy the democratic process.

Had Trumps lawyers been more forthright, they might have argued that, although the letter of the Constitution allows Trump to be impeached, the Senate should apply the spirit of the First Amendment to the case, and therefore take into account the Brandenburg definition of incitement. That argument would at least have been constitutionally respectable.

Even then, the House managers would have a good answer: that Trump violated the spirit of the Brandenburg rule by encouraging the attack on the Capitol. The former president probably couldnt be punished criminally for what he said on Jan. 6. But for the high crime of trying to break democracy, he can and should be barred from running for office again.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast Deep Background. He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include The Three Lives of James Madison: Genius, Partisan, President.

See the rest here:
Comment: Trump's lawyers have it wrong on First Amendment, too | HeraldNet.com - The Daily Herald

Heres what you need to know:Video

transcript

transcript

Like every other politically 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. To claim that the president in any way wished, desired or encouraged lawless or violent behavior is a preposterous and monstrous lie. A small group who came to engage in violent and menacing behavior hijacked the event for their own purposes. This sham impeachment also poses a serious threat to freedom of speech for political leaders of both parties at every level of government. The Senate should be extremely careful about the president, the precedent, this case will set. We heard a lot this week about fight like hell, but they cut off the video before they showed you the presidents optimistic, patriotic words that followed immediately after. Fight like hell, and if you dont fight like hell, youre not going to have a country anymore. Our exciting adventures and boldest endeavors have not yet begun. My fellow Americans, for our movement, for our children and for our beloved country, and I say this despite all thats happened, the best is yet to come. This case, unfortunately, is about political hatred. It has become very clear that the House Democrats hate Donald Trump. This type of political hatred has no place in our political institutions, and certainly no place in the law. This hatred has led the House managers to manipulate and selectively edit Mr. Trumps speech to make it falsely appear that he sought to incite the crowd to violently attack the Capitol. Suddenly, the word fight is off limits? Spare us the hypocrisy and false indignation. Its a term used over and over and over again by politicians on both sides of the aisle. And of course, the Democrat House managers know that the word fight has been used figuratively in political speech forever. But dont take it from me. Its best to listen to them. We are in a fight. We are in a fight. Democrats are fighting as hard as we can. Democrats are standing up to fight. We know how to fight. We like a good fight. Democrats are going to fight like hell. We fight like hell. So why are we here? Politics. Their goal is to eliminate a political opponent. To substitute their judgment for the will of the voters. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of Covid relief to the American people.

Lawyers for Donald J. Trump delivered an incendiary but brief defense of the former president on Friday, calling the Houses charge that he incited an insurrection at the Capitol a preposterous and monstrous lie as they falsely equated his conduct to Democrats own combative rhetoric.

Confident they have enough votes from Republicans to acquit Mr. Trump, the lawyers used only about three of their 16 allotted hours. Their speed allowed senators to complete a period of questioning the prosecution and defense Friday evening and cleared the way for closing arguments and a final verdict, likely on Saturday.

Earlier, the defense team had channeled the former presidents own combative style and embrace of falsehoods to claim, contrary to facts, that Mr. Trump never glorified violence during his presidency and that he consistently called for peace as the rampage at the Capitol unfolded. Showing video clips of Democrats urging their supporters to fight and Mr. Trump venerating law and order, they sought to rewrite not just the narrative of his campaign to overturn the election but that of his entire presidency.

This trial is about far more than President Trump, said Bruce L. Castor Jr., one of the lawyers, as he closed the defense. It is about silencing the speech the majority does not agree with. It is about canceling 75 million Trump voters and criminalizing political viewpoints.

The defenses presentation unfolded after nine House prosecutors spent two days laying out a meticulous case against the former president dramatized with never-before-seen video of the Jan. 6 riot portraying the rampage as the direct result of Mr. Trumps monthslong campaign to overturn the election. Desperate to cling to power, the Democrats argued, Mr. Trump goaded his followers into joining his effort and would do so again, they said, if the Senate failed to convict him and bar him from holding office in the future.

Among the lawyers core arguments were that the Senate lacks jurisdiction to even try a former president now out of office, that Mr. Trumps conduct was protected by the First Amendment and that it came nowhere near the legal definition for incitement.

But standing before a jury of 100 senators, their case was as political in nature as it was legal. Using a favorite tactic of Mr. Trumps, his lawyers also sought to defend his behavior by citing that of others, arguing that he could no more be held responsible for the Capitol assault than Democrats could for the violence that erupted at some racial justice protests last summer.

They also sought to selectively poke holes in Democrats case. Michael van der Veen, one of the lawyers, insisted on Friday that Mr. Trump had only ever been interested in election security reforms, like voter ID laws an assertion that directly contradicted months of public and private actions by Mr. Trump. He said the president intended for the Jan. 6 rally he hosted before the attack to be peaceful, but that it had been hijacked by extremists, including from the far left another claim disproved even by Republicans.

The reality is Mr. Trump was not in any way shape or form instructing these people to fight using physical violence, Mr. van der Veen said. What he was instructing them to do was challenge their opponents in primary elections, to push for sweeping election reforms, to hold big tech responsible all customary and legal ways to petition your government for redress of grievances.

Mr. Castor also pointed to tweets by Mr. Trump while the attack was underway telling his supporters to stay peaceful and support our Capitol Police. But he did not discuss Mr. Trumps actions during the hours when the Capitol was under attack in which managers said he reveled in his success and delayed sending in reinforcements.

We know that the president would never have wanted such a riot to occur, because his longstanding hatred for violent protesters and his love for law and order is on display, worn on his sleeve, every single day that he served in the White House, he said.

Later, during the question and answer session, Mr. van der Veen said Mr. Trump had not been aware that his vice president, Mike Pence, had been in danger, even though a senator he called during the attack told him Mr. Pence was being evacuated from the chamber.

Maggie Haberman contributed reporting.

transcript

transcript

If we do not convict former President Trump, what message will we be sending to future presidents and Congresses? The consequences of his conduct were devastating on every level. Police officers were left overwhelmed, unprotected; Congress had to be evacuated; our staff barricaded in this building, calling their families to say goodbye. And the world watched us. And the world is still watching us to see what we will do this day. And will know what we did this day 100 years from now. Is it not true that under this new precedent, a future House facing partisan pressure to lock her up could impeach a former secretary of state and a future Senate be forced to put her on trial and potentially disqualify from any future office? In this case, we have a president who committed his crimes against the republic while he was in office. He was impeached by the House of Representatives while he was in office. Mr. Raskin cant tell you on what grounds you acquit. If you believe, even though there was a vote, that theres jurisdiction, if you believe jurisdiction is unconstitutional, you can still believe that. If you believe that the House did not give appropriate due process in this, that can be your reason to acquit. It is clear that President Trumps plot to undermine the 2020 election was built on lies and conspiracy theories. How did this plot to unconstitutionally keep President Trump in power lead to the radicalization of so many of President Trumps followers and the resulting attack on the Capitol? What our commander in chief did was the polar opposite of what were supposed to do. We let the people decide the elections. Except President Trump. He directed all of that rage that he had incited to January 6th. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election? Who asked that? [Sen. Bernie Sanders] I did. My judgment is irrelevant in this proceeding. It absolutely is. Whats supposed to happen here is the article of impeachment is supposed to be [Sen. Patrick Leahy] The Senate will be in order. Whats relevant in this impeachment article is: Were Mr. Trumps words inciteful to the point of violence and riot? Thats the charge. Thats the question. And the answer is no. If the Senates power to disqualify is not derivative of the power to remove a convicted president from office, could the Senate disqualify a sitting president but not remove him or her? Mr. Castro attributed a statement, the time before last that he was up here, that Donald Trump had told his people to fight to the death. Im not from here Im not like you guys I was being very polite and giving him an opportunity to correct the record. And I thought thats exactly what he would do. But instead, what he did is he came up and illustrated the problem with the presentation of the House case. Its been smoke and mirrors, and worse, its been dishonest.

Senators on Friday afternoon opened their first and last window in the trial to directly question the prosecution and defense. But as they submitted questions in writing one by one, most members of the jury appeared more interested in scoring political points than breaking new ground.

Does a politician raising bail for rioters encourage more rioting? read one early question from Senators Lindsey Graham of South Carolina, Ted Cruz of Texas and two other Republicans. It was an apparent reference to Democrats who supported bail funds for people arrested while protesting racial violence this summer.

Bruce L. Castor Jr., one of former President Donald J. Trumps lawyers, gave a one word answer: Yes.

Senator Bernie Sanders, independent of Vermont, asked Mr. Trumps lawyers whether the former presidents big lie was correct when he insisted over and over again that he had won the election. If it was an attempt to force his defense to contradict their client, it did not work.

Who asked that? responded Michael van der Veen, another lawyer for the former president, looking for Mr. Sanders. My judgment? My judgments is irrelevant in this proceeding.

As time ticked by, the former presidents lawyers and the House managers began sniping at each other, too. Mr. van der Veen complained the trial was the most miserable experience Ive had down here in Washington, D.C. and accused Representative Jamie Raskin, Democrat of Maryland and the lead manager, of doctoring evidence.

Mr. Raskin was not pleased. Counsel said before, This has been my worst experience in Washington, he said. For that, I say were sorry, but man you should have been here on Jan. 6.

A short time later, Senator Patrick J. Leahy of Vermont, who was presiding over the trial, gently warned that all parties in this chamber must refrain from using language that is not conducive to civil discourse.

The exception came from a small group of Republican senators openly contemplating conviction. Senators Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah and Bill Cassidy of Louisiana all seemed interested in what Mr. Trump knew about the unfolding riot, when he knew it and what he did about it.

Mr. van der Veen said he could not precisely say when Mr. Trump learned about the attack, but he blamed it on the Democratic managers for building their impeachment on hearsay on top of hearsay on top of hearsay rather than a thorough investigation.

We have a tweet at 2:38 p.m., so it was certainly sometime before then, he said.

When Mr. Romney and Ms. Collins pressed the lawyers on Mr. Trumps specific knowledge of the threat to his vice president, Mike Pence, the answer was clearer, but it appeared to contradict the word of Senator Tommy Tuberville, Republican of Alabama, who told reporters this week he informed the president that the vice president was being evacuated from the Senate chamber during a contemporaneous phone call.

The answer is no, said Mr. van der Veen. At no point was the president informed that the vice president was in any danger.

Democrats scoffed, and argued that any weaknesses in their evidentiary record was the fault of Mr. Trump, who refused an invitation to testify.

Rather than yelling at us and screaming about how we didnt have time to get all the facts about what your client did, bring your client up here and have him testify under oath, Mr. Raskin said.

transcript

transcript

The House managers spoke about rhetoric, about a constant drumbeat of heated language. Well as Im sure everyone watching expected, we need to show you some of their own words. I just dont know why there arent uprisings all over the country. Maybe there will be. There needs to be unrest in the streets for as long as there is unrest in our lives. Weve got to be ready to throw a punch. We have to be able to throw a punch. Donald Trump, I think you need to go back and punch him in the face. Please get up in the face of some Congresspeople. People will do what they do. I want to tell you Gorsuch, I want to tell you, Kavanaugh, you have released the whirlwind, and you will pay a price. If you had to be stuck in an elevator with either President Trump, Mike Pence or Jeff Sessions, who would it be? Does one of us have to come out alive. Im just going to keep the fight up. What we have to do right now is fight as hard as we can. We have to rise up and fight back. And so, were going to fight. And were going to continue to fight. I am going to be fighting fighting like hell. Keep fighting, fighting, fighting we kept fighting, and we did. So were going to keep fighting. Never, never, never give up this fight. Im a citizen fighting for it Means not only fighting As a leader who fought for progressive change As a lawyer who fought for people his whole life As well as other fights, and Im proud to have Tim in this fight.

Former President Donald J. Trumps defense team offered their own video presentation on Friday a montage of remarks by Democrats urging supporters to fight a rhetorical drumbeat aimed at countering the impact of the footage of the real fight at the Capitol, images of blood and broken glass, presented by the prosecution on Wednesday.

The strategy by Mr. Trumps lawyers was to prove that Mr. Trumps call for his followers to fight like hell in a speech shortly before members of the crowd stormed Congress on Jan. 6 was no different than anti-Trump remarks made by Speaker Nancy Pelosi of California, Representative Maxine Waters of California, Senator Elizabeth Warren of Massachusetts and other members of Congress.

To make their point, the team played a lengthy mash-up of bellicose statements from Democrats including President Bidens claim on the campaign trail that he would have beaten the hell out of Mr. Trump in high school.

The presentation, featuring quick-cut editing and the type of ominous music often heard in negative campaign ads, a sharp contrast to the raw footage, sometimes silent, of the attack that was compiled by the House impeachment managers from security cameras and cellphone video, and accompanied by a minute-by-minute timeline.

The defense teams montage concluded with images of Democrats praising the protests against police violence in cities across the United States last summer, juxtaposed with video of rioting, even though every senior Democrat denounced violence.

I showed you the video because in this political forum, all robust speech should be protected, said Michael van der Veen, one of the presidents lawyers.

When you see speech such as this, you have to apply the First Amendment evenly. Blindly, he said, adding, She is blind, lady justice.

It reflected the argument being promoted by Trump defenders on conservative media outlets like Fox News, and was part of an effort to offer a more defiant defense pushed by the former president, who was dissatisfied with the earlier efforts of his team.

It is not clear that the approach had its desired effect, however.

During the presentation, senators in both parties were overheard chatting and laughing by observers in the chamber. Democrats emerged enraged at what they saw as an argument built upon false equivalence.

Show me anytime that the result was our supporters pulled someone out of the crowd, beat the living crap out of them and then we said: Thats great. Good for you. Youre a patriot, Sen. Chris Coons of Delaware said after watching the video.

Yet the approach might have succeeded in giving Republicans caught between their disdain for Mr. Trumps behavior and fear of his hold over the party enough cover to justify an acquittal.

The Twitter/CNN/MSNBC bubble will mock & dismiss this defense, but it is going to work with Republican voters and it will give much needed cover and justification to Republican Senators to acquit, said Joe Walsh, a former Republican congressman and frequent Trump critic, on Twitter during the defenses arguments.

As the Capitol was being infiltrated by a mob last month, what did President Donald J. Trump know about Vice President Mike Pences whereabouts and when did he know it?

That was a question multiple senators were intent on learning more about Friday evening, during a period in the impeachment trial in which senators questioned the House impeachment managers and Mr. Trumps lawyers.

At issue was not only when Mr. Trump took any steps to help end the riot, but also a tweet he posted that day at 2:24 p.m. as rioters had breached the Capitol and Mr. Pence was being rushed out of the Senate chamber.

The vice president didnt have the courage to do what should have been done to protect our Country and our Constitution, Mr. Trump tweeted.

Senator Mitt Romney asked early in the question-and-answer session: When President Trump sent the disparaging tweet at 2:24 p.m. regarding Vice President Pence, was he aware that Vice President Pence had been removed from the Senate by the Secret Service for his safety?

No, Michael van der Veen, one of Mr. Trumps lawyers, said bluntly. At no point, he continued, was the president informed that the vice president was in any danger.

The Democratic House managers, who are serving as prosecutors in the trial, argued that Mr. Trump had to know what was going on at the time of his tweet. The whole world knew it, all of us knew it, said Representative Joaquin Castro, Democrat of Texas. Live television had by this point shown that the insurgents were already inside the building, and that they had weapons and that the police were outnumbered.

The answer also appeared to contradict statements from Senator Tommy Tuberville, Republican of Alabama. Mr. Tuberville told reporters this week about a cellphone call he had with Mr. Trump as the Senate was being evacuated. Well, I mean, I dont know if youve ever talked to President Trump, he said. You dont get many words in, but, uh, he didnt get a chance to say a whole lot because I said, Mr. President, they just took the vice president out, Ive got to go.

The timestamp on Mr. Trumps tweet about Mr. Pence lacking courage shows it was sent about 10 minutes after Mr. Pence was evacuated from the chamber.

The Democratic House managers noted Mr. Tubervilles remarks in their answer to Mr. Romneys question. Later in the evening, Senator Bill Cassidy, Republican of Louisiana, brought them up again, asking if Mr. Tubervilles account shows Mr. Trump was tolerant of the intimidation of Vice President Pence.

Both sides largely reiterated their arguments.

But Mr. Trumps lawyer also argued that whatever Mr. Trump knew about Mr. Pences whereabouts was irrelevant to the charge against him, incitement of insurrection. Other legal analysts might be dubious of that argument. If Mr. Trump was aware of his vice presidents imminent danger, it would conceivably bear on Mr. Trumps intentions.

On the eve of a verdict in Donald J. Trumps Senate trial, one of the 10 Republicans who voted to impeach him confirmed on Friday night that the top House Republican, Representative Kevin McCarthy, told her that the former president had sided with the mob during a phone call as the Jan. 6 Capitol attack unfolded.

In a statement on Friday night, Representative Jaime Herrera Beutler, Republican of Washington, recounted a phone call relayed to her by Mr. McCarthy of California, the minority leader, in which Mr. Trump was said to have sided with the rioters, telling the top House Republican that members of the mob who had stormed the Capitol were more upset about the election than you are.

She pleaded with witnesses to step forward and share what they knew about Mr. Trumps actions and statements as the attack was underway.

To the patriots who were standing next to the former president as these conversations were happening, or even to the former vice president: if you have something to add here, now would be the time, Ms. Herrera Beutler said in the statement.

Her account of the call between Mr. McCarthy and Mr. Trump, first reported by CNN, addressed a crucial question in the impeachment trial: what Mr. Trump was doing and saying privately while the Capitol was being overrun.

Ms. Herrera Beutler said that Mr. McCarthy had relayed details of his phone call with Mr. Trump to her. She has been speaking publicly about it for weeks, including during a virtual town hall on Monday with constituents, and she recounted their conversation again in the statement on Friday.

A spokesman for Mr. McCarthy did not reply to a request for comment. Spokespeople for the House impeachment managers did not immediately reply to a request for comment.

The Republican leaders response to Mr. Trump in the weeks since the attack on the Capitol has fluctuated. On the day of the Houses impeachment vote, he said Mr. Trump bore some responsibility for the attack because he had not denounced the mob, but he has since backtracked and sought to repair his relationship with the former president.

By Ms. Herrera Beutlers account, Mr. McCarthy called Mr. Trump frantically on Jan. 6 as the Capitol was being besieged by thousands of pro-Trump supporters trying to stop Congress from counting Electoral College votes that would confirm his loss.

She said Mr. McCarthy asked him to publicly and forcefully call off the riot.

Mr. Trump replied by saying that antifa, not his supporters, was responsible. When Mr. McCarthy said that was not true, the former president was curt.

Well, Kevin, I guess these people are more upset about the election than you are, he said, according Ms. Herrera Beutlers account of what Mr. McCarthy told her.

Hours after the assault began, Mr. Trump tweeted a video in which he asked those ransacking the Capitol to leave. Go home. We love you. Youre very special, he said.

A core argument of Mr. Trumps defense, made by Michael van der Veen, one of his lawyers, is that Mr. Trump cannot be convicted of inciting an insurrection because everything he said was protected by his rights to free speech under the Constitution.

Mr. van der Veen who is a personal injury lawyer, not a civil liberties lawyer dismissed a letter signed last week by 144 constitutional scholars and First Amendment lawyers from across the political spectrum, who called a free speech defense of Mr. Trump legally frivolous and not grounds for dismissing the charge against him.

Nonetheless, Mr. van der Veen argued, Mr. Trumps speech deserves full protection under the First Amendment. He cited Supreme Court cases holding that elected officials can engage in political speech.

Adam Liptak, who covers the Supreme Court for The New York Times, addressed the argument in a live analysis.

Its true, of course, that elected officials have First Amendment rights, Mr. Liptak wrote. Its also true that government officials may be fired for making statements that would otherwise be protected political speech. An impeachment trial may present that second sort of question.

Mr. Liptak quoted from the House impeachment managers brief that addressed the First Amendment argument advanced by Mr. Trumps lawyers: Under President Trumps view of the First Amendment, even a sitting President who strenuously urged States to secede from the Union and rebel against the federal government would be immune from impeachment.

FACT CHECK

Donald J. Trumps lawyers, mounting their defense of the former president on Friday, made a number of inaccurate or misleading claims about the Jan. 6 siege of the Capitol, Mr. Trumps remarks and the impeachment process itself. Here are some of them.

Michael van der Veen, one of the lawyers, misleadingly said that Mr. Trump did not express a desire that the joint session be prevented from conducting its business but rather the entire premise of his remarks was that the democratic process would and should play out according to the letter of the law. But Mr. Trump repeatedly urged former Vice President Mike Pence to send it back to the States to recertify and noted that he was challenging the certification of the election.

Far from promoting insurrection of the United States, the presidents remarks explicitly encouraged those in attendance to exercise their rights peacefully and patriotically, Mr. van der Veen said. Mr. Trump used the phrase peacefully and patriotically once in his speech, compared to 20 uses of the word fight.

Mr. van der Veen also claimed that one of the first people arrested in connection with the riots at the Capitol was the leader of antifa. That was a hyperbolic reference to John E. Sullivan, a Utah man who was charged on Jan. 15 for violent entry and disorderly conduct. Mr. Sullivan, an activist, has said he was there to film the siege. He has referred to antifa a loose collective of antifascist activists that has no leader on social media, but he has repeatedly denied being a member of the movement, though he shares its beliefs.

The Federal Bureau of Investigation has said there is no evidence that supporters of the antifa movement had participated in the Jan. 6 siege.

Mr. van der Veen equated the Jan. 6 siege to the protests at Lafayette Square in front of the White House last summer, and presented a false timeline, claiming that violent rioters repeatedly attacked Secret Service officers and at one point, pierced a security wall, culminating in the clearing of Lafayette Square.

There was no breach. Law enforcement officials began clearing Lafayette Square after 6 p.m. on June 1, to allow Mr. Trump to pose, while holding a Bible, in front of a church near the square. Additional security fencing was installed after those events, according to local news reports and the National Park Service.

Similarly, Mr. van der Veen compared Mr. Trumps complaints and political language about the 2020 election with concerns about the integrity of the 2016 election, arguing that the entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked. But American intelligence agencies concluded years ago that Russia tried to interfere in the 2016 election. The Republican-led Senate agreed last year that Russia disrupted that election to help Mr. Trump.

David Schoen, another lawyer, misleadingly claimed that the House held on to the article of impeachment until Democrats had secured control over the Senate and Representative Clyburn made clear they had considered holding the articles for over 100 days to provide President Biden with a clear pathway to implement his agenda.

In fact, Democrats had considered delivering the article to the Senate earlier, almost immediately after it was approved, but Senator Mitch McConnell, then the majority leader, precluded the possibility of an immediate trial in a letter informing Republican lawmakers that the Senate was in recess and may conduct no business until January 19. Mr. Clyburn made his suggestion of withholding the article even longer, after Mr. McConnell had sent his letter.

Mr. Schoen also accused Democrats of presenting a manufactured graphic, referring to a New York Times photo of Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager, looking at a computer screen. The screen featured an image of a tweet Mr. Trump shared stamped with an erroneous date. Left unsaid was that the image was recreated because Mr. Trump has been banned from Twitter and House managers could not simply show the retweet itself. Mr. Schoen then acknowledged that House managers fixed the incorrect date before presenting the graphic during the trial.

Mr. Schoen complained once again that the impeachment did not afford Mr. Trump due process a point Mr. Trumps lawyers and supporters had previously argued during his first impeachment, and a point law scholars had dismissed.

There are no enforceable rights to due process in a House inquiry, and while those rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a law professor at the University of Missouri and an expert on impeachment. Former President Andrew Johnson, for example, was impeached by the House before it even drew up the articles.

Fani T. Willis, the top prosecutor in Fulton County, Ga., is targeting former President Donald J. Trump and a range of his allies in her newly announced investigation into election interference.

Ms. Willis and her office have indicated that the investigation, which she revealed this week, will include Senator Lindsey Grahams November phone call to Brad Raffensperger, Georgias secretary of state, about mail-in ballots; the abrupt removal last month of Byung J. Pak, the U.S. attorney for the Northern District of Georgia, who earned Mr. Trumps enmity for not advancing his debunked assertions about election fraud; and the false claims that Rudolph W. Giuliani, the presidents personal lawyer, made before state legislative committees.

An investigation is like an onion, Ms. Willis told The New York Times in an interview. You never know. You pull something back, and then you find something else.

She added, Anything that is relevant to attempts to interfere with the Georgia election will be subject to review.

View post:
Highlights of Day 4 of the Trump Impeachment Trial - The New York Times