Trump’s Lawyers Lied About The Violent Insurrection At The Heart Of His Impeachment

The former president’s legal team argued that his speech was protected by the First Amendment and presented long video montages of Democrats saying the word “fight.”

WASHINGTON — During a three-hour presentation on Friday afternoon, former president Donald Trump’s lawyers downplayed the scope of the violent insurrection at the US Capitol on Jan. 6 and presented false and misleading information about the riots.

Trump’s impeachment defense on Friday essentially boiled down to accusing Democrats of infringing on the former president’s free speech rights under the First Amendment and taking his words out of context, denying that he meant it literally when he told his supporters on Jan. 6 to “fight like hell” shortly before the mob descended on the Capitol, and insisting that Democrats were hypocrites because they, too, had used the word “fight” in the past.

Trump’s lawyers tried to shift the focus away from the hours of video footage and timeline reconstructions that House impeachment managers had presented over the previous two days. They referenced a “small group” that “hijacked” the demonstrations on Jan. 6 — more than 200 people have been charged, and law enforcement officials have said there are hundreds more open investigations — and falsely suggested the mob was politically diverse. (The evidence has overwhelmingly identified participants as Trump supporters.) They downplayed evidence that prosecutors and defense lawyers have put forward directly linking the insurrection to Trump’s postelection conduct and his Jan. 6 speech.

“The reality is, Mr. Trump was not in any way, shape, or form instructing these people to fight or to use physical violence,” attorney Michael van der Veen argued, noting that the former president had also told his supporters that day to go to the Capitol and “peacefully and patriotically make your voices heard.”

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In charging papers, prosecutors have laid out a pattern of Trump supporters explaining in their own words — via social media posts and videos, interviews with reporters, and, in a few cases, directly to the FBI — that they had come to Washington, DC, at the former president’s urging, prepared for a violent confrontation or were spoiled for a fight, and understood they were following his direction and had his approval when they descended on the Capitol.

On Thursday, prosecutors described how Jessica Watkins, a member of the Oath Keepers militant group charged with conspiracy and other crimes in connection with the insurrection, was “awaiting direction” from Trump after the election.

Van der Veen instead accused the House impeachment managers of trying to pin blame on Trump “based on double hearsay statements of fringe right-wing groups based on no real evidence other than rank speculation.” He also falsely claimed that “the leader of antifa” was one of the first people arrested at the Capitol. No one charged to date has been described by the government as a member of antifa, let alone a leader.

The attorney didn’t specify whom he was referring to — but shortly after the riot, images of John Earle Sullivan began circulating in right-wing corners of the internet. Sullivan, a Utah man who had been arrested and charged with illegally going into the Capitol, had been involved in organizing racial justice demonstrations in Salt Lake City but has said he’s not affiliated with antifa or Black Lives Matter. The Washington Post reported that activists in Utah were suspicious of him and his motives. He’s also claimed that he’s not politically affiliated and that he was at the Capitol filming the events as a journalist. The government has disagreed with that last argument and presented quotes from videos where Sullivan can allegedly be heard urging on rioters.

Van der Veen argued that it was “apparent that extremists of various different stripes and political persuasions preplanned and premeditated” the attack. Prosecutors have presented evidence that small clusters of defendants planned for violence that day — but to date those defendants have been identified as Trump supporters, largely based on their public social media posts.

Democrats managed to convince a majority of the Senate, including a handful of Republicans, to reject Republican Sen. Rand Paul’s effort to stop the trial from taking place on constitutional grounds. But the vote also showed Trump’s substantial support among the GOP and the steep odds Democrats face in getting the two-thirds majority needed to secure a conviction.

Article I of the Constitution gives the House of Representatives the power to impeach and the Senate the power to decide whether to convict. It also spells out the two possible consequences of a conviction: removal from office and disqualification from holding office in the future. Article II, meanwhile, which addresses the powers and functions of the executive branch, states that the president and other public officials “shall be removed from Office” if they’re impeached and then convicted of “Treason, Bribery, or other High Crimes and Misdemeanors.”

Trump’s lawyers have argued that Article II’s reference to removal as a consequence of impeachment makes the trial unconstitutional: Because Trump is no longer in office, he can’t be removed.

But Democrats and constitutional scholars have rejected this, saying that Article I has no language that restricts the Senate to only trying sitting presidents, as opposed to former ones. Article II makes clear what the baseline punishment is for conviction, these scholars say, not that the Senate can’t hold a trial at all if removal is no longer an option.

Trump’s lawyers devoted much of their presentation to arguments that the charges against the former president and the impeachment trial itself are unconstitutional. Van der Veen argued that the First Amendment’s free speech protections should shield Trump. He angrily decried a group of more than 100 constitutional scholars and lawyers who signed a letter before the trial calling the First Amendment argument “legally frivolous,” calling it an “outrageous attempt to intimidate” Trump’s legal team.

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