Schoen, David I

#masthead-section-label, #masthead-bar-one { display: none }The Trump ImpeachmentFriday’s HighlightsDay 4: Key TakeawaysWhat Is Incitement?Trump’s LawyersAdvertisementContinue reading the main storySupported byContinue reading the main storyTrump’s Lawyers Deny He Incited Capitol Mob, Saying It’s Democrats Who Spur ViolenceThe former president’s legal team rested its case without using even a quarter of the 16 hours allotted to it.Michael T. van der Veen, one of former President Donald J. Trump’s lawyers, on Friday before presenting the defense’s case.Credit…Erin Schaff/The New York TimesPeter Baker and Feb. 12, 2021Updated 8:04 p.m. ETFormer President Donald J. Trump’s legal team mounted a combative defense on Friday focused more on assailing Democrats for “hypocrisy” and “hatred” than justifying Mr. Trump’s own monthslong effort to overturn a democratic election that culminated in last month’s deadly assault on the Capitol.After days of powerful video footage showing a mob of Trump supporters beating police officers, chasing lawmakers and threatening to kill the vice president and House speaker, Mr. Trump’s lawyers denied that he had incited what they called a “small group” that turned violent. Instead, they tried to turn the tables by calling out Democrats for their own language, which they deemed just as incendiary as Mr. Trump’s.In so doing, the former president’s lawyers went after not just the House Democrats serving as managers, or prosecutors, in the Senate impeachment trial, but half of the jurors sitting in front of them in the chamber. A rat-a-tat-tat montage of video clips played by the Trump team showed nearly every Democratic senator as well as President Biden and Vice President Kamala Harris using the word “fight” or the phrase “fight like hell” just as Mr. Trump did at a rally of supporters on Jan. 6 just before the siege of the Capitol.“Suddenly, the word ‘fight’ is off limits?” said Michael T. van der Veen, one of the lawyers hurriedly hired in recent days to defend Mr. Trump. “Spare us the hypocrisy and false indignation. It’s a term that’s 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.”To emphasize the point, the Trump team played some of the same clips four or five times in less than three hours as some of the Democratic senators shook their heads and at least one of their Republican colleagues laughed appreciatively. The lawyers argued that the trial was “shameful” and “a deliberate attempt by the Democrat Party to smear, censor and cancel” an opponent and then rested their case without using even a quarter of the 16 hours allotted to the former president’s defense.Representative Jamie Raskin, center, the lead House impeachment manager, on Friday at the Capitol with aides and other managers during a break in the trial.Credit…Erin Schaff/The New York TimesIn the process, they tried to effectively narrow the prosecution’s “incitement of insurrection” case as if it centered only on their client’s use of that one phrase in that one speech instead of the relentless campaign that Mr. Trump waged since last summer to discredit an election he would eventually lose and galvanize his supporters to help him cling to power.“They really didn’t address the facts of the case at all,” said Representative Jamie Raskin, Democrat of Maryland and the lead impeachment manager. “There were a couple propaganda reels about Democratic politicians that would be excluded in any court in the land. They talk about the rules of evidence — all of that was totally irrelevant to the case before us.”After the Trump team’s abbreviated defense, the senators posed their own questions, generally using their queries to score political points. The questions, a total of 28 submitted in writing and read by a clerk, suggested that most Republicans remained likely to vote to acquit Mr. Trump when the Senate reconvenes for final arguments at 10 a.m. Saturday, blocking the two-thirds supermajority required by the Constitution for conviction.Some of the few Republicans thought to be open to conviction, including Senators Mitt Romney of Utah, Susan Collins of Maine and Lisa Murkowski of Alaska, grilled the lawyers about what Mr. Trump knew and when he knew it during the attack. The managers have argued that it was not just the president’s words and actions in advance of the attack that betrayed his oath, but his failure to act more assertively to stop his supporters after it started.Responding to the senators, the defense lawyers pointed to mildly worded messages and a video that Mr. Trump posted on Twitter after the building was stormed calling on his supporters not to use violence while still endorsing their cause and telling them that he loved them. The managers repeated that Mr. Trump never made a strong, explicit call on the rioters to halt the attack, nor did he send help.Mr. Romney and Senator Bill Cassidy, Republican of Louisiana, zeroed in on Mr. Trump’s failure to exhibit concern for his own vice president, Mike Pence, who was targeted for death by the former president’s supporters because he refused to try to block finalization of the election. Even after Mr. Pence was evacuated from the Senate chamber that day, Mr. Trump attacked him on Twitter, saying that “Mike Pence didn’t have the courage to do what should have been done.”Senator Mitt Romney returning to the Senate chamber after a break in the trial on Friday.Credit…Brandon Bell for The New York TimesMr. van der Veen told the senators that “at no point was the president informed that the vice president was in any danger.” But in fact, Senator Tommy Tuberville, Republican of Alabama, told reporters this week that he spoke by telephone with Mr. Trump during the attack and told him that Mr. Pence had been rushed out of the chamber. Officials have said that Mr. Trump never called Mr. Pence to check on his safety and did not speak with him for days.The defense team struggled to avoid directly addressing what managers called Mr. Trump’s “big lie” that the election was stolen, which led his supporters to invade the Capitol to try to stop Congress from counting the Electoral College votes ratifying the result. Senator Bernie Sanders of Vermont, an independent who caucuses with the Democrats, challenged Mr. Trump’s lawyers to say whether they believe he actually won the election.“My judgment?” Mr. van der Veen replied derisively and then demanded: “Who asked that?”“I did,” Mr. Sanders called out from his seat.“My judgment’s irrelevant in this proceeding,” Mr. van der Veen said, prompting an eruption from Democratic senators. He repeated that “it’s irrelevant” to the question of whether Mr. Trump incited the riot.Senate Democrats dismissed the defense’s efforts to equate Mr. Trump’s actions with Democratic speeches. “They’re trying to draw a dangerous and distorted equivalence,” Senator Richard Blumenthal, Democrat of Connecticut, told reporters during a break in the trial. “I think it is plainly a distraction from Donald Trump inviting the mob to Washington.”But for Republicans looking for reasons to acquit Mr. Trump, the defense was more than enough. “The president’s lawyers blew the House managers’ case out of the water,” said Senator Ron Johnson, Republican of Wisconsin.Even Ms. Murkowski, who called on Mr. Trump to resign after the Capitol siege, said the defense team was “more on their game” than during the trial’s opening day this week, although by day’s end, she indicated to a reporter she was agonizing over the decision.“It’s been five weeks — less than five weeks — since an event that shook the very core the very foundation of our democracy,” she said. “And we’ve had a lot to process since then.”During the question period, senators closely watched for clues about where their colleagues stood. Although most lawmakers still guessed that only a handful of Republicans would vote to convict, an additional group of Republicans, including Senator Mitch McConnell of Kentucky, the minority leader, have said almost nothing to colleagues about the unfolding trial in private or during daily luncheons before it convenes, prompting speculation that they could be preparing to break from the party.Senator Mitch McConnell of Kentucky, the Republican leader, on the Senate subway before the trial on Friday.Credit…Alyssa Schukar for The New York TimesThe managers need 17 Republicans to join all 50 Democrats to reach the two-thirds required for conviction. While Mr. Trump can no longer be removed from office because his term has ended, he could be barred from ever seeking public office again.The former president had trouble recruiting a legal team to defend him. The lawyers who represented him last year during his first impeachment trial did not come back for this one, and the set of lawyers he initially hired for this proceeding backed out in disagreement over strategy. Bruce L. Castor Jr., the leader of this third set, was widely criticized for his preliminary presentation on Tuesday, including reportedly by Mr. Trump.Mr. Castor and David I. Schoen were largely supplanted on Friday by Mr. van der Veen, who has no long history with the president and in fact was reported to have once called Mr. Trump a “crook” with an expletive, a statement he has denied. Just last year, Mr. van der Veen represented a client suing Mr. Trump over moves that might limit mail-in voting and accused the president of making claims with “no evidence.”But Mr. van der Veen on Friday offered the sort of aggressive performance that Mr. Trump prefers from his representatives as he accused the other side of “doctoring the evidence” with “manipulated video,” all to promote “a preposterous and monstrous lie” that the former president encouraged violence.A personal injury lawyer whose Philadelphia law firm solicits slip-and-fall clients on the radio and whose website boasts of winning judgments stemming from auto accidents and one case “involving a dog bite,” Mr. van der Veen proceeded to lecture Mr. Raskin, who taught constitutional law at American University for more than 25 years, about the Constitution. The managers’ arguments, Mr. van der Veen said, were “less than I would expect from a first-year law student.”He and his colleagues argued that Mr. Trump was exercising his free-speech rights in his fiery address to a rally before supporters broke into the Capitol. The lawyers leaned heavily on Mr. Trump’s single use of the word “peacefully” as he urged backers to march to the Capitol while minimizing the 20 times he used the word “fight.”“No thinking person could seriously believe that the president’s Jan. 6 speech on the Ellipse was in any way an incitement to violence or insurrection,” Mr. van der Veen said. “The suggestion is patently absurd on its face. Nothing in the text could ever be construed as encouraging, condoning or inciting unlawful activity of any kind.”Bruce L. Castor Jr. and Mr. van der Veen arriving at the Capitol on Friday.Credit…Jason Andrew for The New York TimesSensitive to the charge that Mr. Trump endangered police officers, who were beaten and in one case killed during the assault, the lawyers played video clips in which he called himself a “law and order president” along with images of antiracism protests that turned violent last summer.They likewise showed video clips of Democrats objecting to Electoral College votes in past years when Republicans won, including Mr. Raskin in 2017 when Mr. Trump’s victory was sealed, comparing them with Mr. Trump’s criticism of the 2020 election. At the same time, those videos also showed Mr. Biden, then vice president, gaveling those protests out of order.Stacey Plaskett, a Democratic delegate from the Virgin Islands and one of the managers, objected that many of the faces shown in the videos of Democratic politicians and street protesters were Black. “It was not lost on me so many of them were people of color and women, Black women,” she said. “Black women like myself who are sick and tired of being sick and tired for our children.”The defense lawyers contended that Democrats were pursuing Mr. Trump out of personal and partisan animosity, using the word “hatred” 15 times during their formal presentation, and they cast the trial as an effort to suppress a political opponent and his supporters.“It is about canceling 75 million Trump voters and criminalizing political viewpoints,” Mr. Castor said. “That’s what this trial is really about. It is the only existential issue before us. It asks for constitutional cancel culture to take over in the United States Senate. Are we going to allow canceling and banning and silencing to be sanctioned in this body?”Emily Cochrane More