‘Constitutional Cancel Culture.’ Trump’s Lawyers Say He Didn’t Incite Capitol Riot in Brief Defense

Donald Trump’s attorneys defended the former President against the charge that he incited an insurrection before the Senate on Friday, presenting their entire argument in less than three hours.

House managers “chose to spend 14-plus hours showing you pictures of how horrific the attack on the United States Capitol was,” said Trump’s lawyer Bruce Castor Jr. “They spent no time at all in connecting legally the attack on the Capitol to the 45th President of the United States.”

The core of the defense team’s argument was that the former President’s rhetoric did not meet the criminal bar for incitement. His lawyers lingered on Democrats’ using as evidence Trump telling his supporters to “fight like hell” in his speech preceding the Jan. 6 attack on the Capitol, and they played reels of selectively edited video of Democrats saying the word “fight” to normalize Trump’s language. The false equivalency ignored the context of Trump’s incendiary comments, but seemed to resonate with some Republican Senators.

“The president’s lawyers blew the House managers’ case out of the water,” said Wisconsin Senator Ron Johnson. “Showing up the hypocrisy and the First Amendment arguments, they just legally eviscerated” the Democrats’ legal team.

The bar for a conviction is high: House managers will need to convince at least 17 Republicans to vote with Democrats to meet it, and it’s unclear at this point how many Republicans will vote with them. The vote could come as early as Saturday.

Trump’s lawyers argued that the former President’s speech the morning of the Jan. 6 riot had not met the legal standard of the Brandenburg test to qualify as criminal incitement, so his words were protected by the First Amendment. The House managers had argued that the First Amendment doesn’t have bearing on an impeachment trial, which is not a legal proceeding but an inquest into whether an official violated their oath of office.

There are three prongs to the Brandenburg test. First, the speech must encourage violence or lawless action. “But here, the president’s speech called for peaceful protest,” said Trump’s lawyer Bruce Castor Jr. (Along with encouraging his followers to “fight like hell,” Trump also told them to “peacefully and patriotically” protest.)

Second, there must be intent from the speaker to provoke lawlessness. “The President clearly deplores rioters and political violence, and did so throughout his term as President, and never hesitated to express his admiration for the men and women that protect this country,” said Castor. Trump was the “most pro-police, anti-mob rule president this country has ever seen,” he said.

Third, imminent lawlessness must be a likely result of the speech. That prong is “completely eviscerated by the fact that the violence was pre-planned,” Castor argued. (House managers had shown that, nearly a month prior to the riot, Trump had invited his supporters to come to a “wild” protest on Jan. 6.)

On Friday, Trump’s defense also blamed the impeachment on partisanship, accusing Democrats of “political hatred.” Two of Trump’s attorneys called the impeachment “constitutional cancel culture,” and argued that Democrats had speedily proceeded through the impeachment process to trigger the trial in the Senate. (Trump was invited to testify at the trial and declined.) They attempted to cast doubt on the legitimacy of the impeachment managers’ evidence by noting how much they relied on media reports.

Trump’s lawyers were “more on their game today than what I saw the other day” said Alaska Sen. Lisa Murkowski, referencing a widely panned first appearance by Trump’s defense team earlier in the week. Friday, she said, Trump’s attorneys were “putting on a good defense.”

They did not, however, answer all of Republicans’ questions. During the question period after arguments ended, Republican Senators Susan Collins of Maine and Murkowski asked Trump’s team to clarify “exactly when did President Trump learn of the breach of the Capitol, what specific actions did he take to bring the rioting to an end, and when did he take them?” Despite Collins and Murkowski urging Trump’s lawyers to be “detailed” in their response, attorney Michael van der Veen cited one of Trump’s public tweets from that day and complained that the House hadn’t done sufficient investigation or afforded Trump “due process.”

Collins and Utah Sen. Mitt Romney then asked whether Trump was aware that former Vice President Mike Pence was in danger inside the Capitol building when he sent a disparaging tweet about him at 2:24 pm during the riot. “No,” van der Veen replied, appearing to directly contradict Alabama Sen. Tommy Tuberville’s account of a call he had with Trump that day, during which he says he informed Trump that Pence had been evacuated from the chamber.

In the end, lingering factual inconsistencies may not affect the outcome of the trial. Other Republican Senators were more clear about their views in their questions, like one from Tennessee Sen. Bill Hagerty and South Carolina Sen. Tim Scott, asking if the impeachment trial was a “political show trial designed to discredit Trump and his policies.” (Castor essentially agreed that it was.)

Sen. Mike Braun, a Republican from Indiana, told reporters he thought the defense was a “good offset” to the House managers’ case. When asked how many undecided senators there are left, he replied, “I don’t think many.”