During their impeachment arguments on Friday afternoon, attorneys for former President Donald Trump accused the Democrats of engaging in a "constitutional culture of impeachment." They suggested that Antifa was partially responsible for the January 6 attack on the Capitol. They argued over a photo in the New York Times and the meaning of a tweet with the word "Golgotha". They made a risky argument that Trump's impeachment somehow violated the First Amendment.
To combat the conspicuous use of footage by the House's impeachment managers from the day of the attack, Trump's lawyers put together their own short films. One was largely made up of Senator Elizabeth Warren (D-MA), who said the word "fight." Another included an expanded (and supposedly less damned) excerpt from Trump's infamous "Very Good People" comment on the 2017 white supremacist rally in Charlottesville, Virginia. Another example was Democrats and celebrities, including Madonna and Johnny Depp, who were evil and said violent sounding things about Trump. They played that three times.
This type of nonsense took up most of the team's short three-hour presentation, defending its client on charges of inciting a riot. It was only in the last 40 minutes – according to the section of senior defense attorney Bruce Castor – that Trump's team made a serious and sustained attempt to refute the crux of the House case: Trump is directly responsible for the violence that occurred on January 6th.
The experiment did not go very well.
Castor ignored key facts like Trump's hours late with the National Guard during the attack. His logic was incoherent at times, arguing (for example) that Trump's disdain for Black Lives Matter protesters meant that he also disapproved of the violence committed by his own followers. And he seemed to have completely misunderstood key parts of the House case, like the role of Trump's behavior in the months leading up to the January 6 rally.
There really is only one reasonable conclusion to be drawn after seeing the defense’s weak portrayal: if this is the best that his lawyers can do, then Trump’s behavior is really unjustifiable.
The many ways Trump's defense failed
For the past two days, the House's impeachment managers have been arguing very simply to indict Trump.
Spreading false and dangerous beliefs suggesting the election had been stolen for months, the president specifically urged them to rally in his defense on January 6, the day Congress would confirm the election results. When these supporters arrived, he encouraged them to act on these beliefs during his congregation speech – with the intention of causing violence, or at least acting willfully.
And when the mob acted – broke into the Capitol and threatened the lives of elected officials – they did nothing to stop them for hours, and sometimes even seemed to encourage the mob. This makes him morally responsible for the insurrection and therefore for someone who should be convicted and excluded from public office.
What is striking about Castor's arguments is that, for the most part, they did not really disprove the heart of the House case. They either danced around it or misinterpreted some of the core themes completely.
For example, Castor argued that Trump did not intend for a mob to attack the Capitol because the president hates mobs.
"We know that the president would never have wanted such a riot because his longstanding hatred of violent protesters and his love for law and order that he wears on his sleeve every day in the White House are shown," Castor said.
But, as the House's impeachment executives pointed out, Trump has a very long history of promoting violence by his supporters. For example, at a rally in 2016, he encouraged his supporters, counter-protesters who were tossing tomatoes, to beat the hell out of the body, adding that "I'll pay the legal fees" if they do.
And when he condemns "violent demonstrators", he almost always speaks of his political enemies – especially activists and antifa from Black Lives Matter. There is no evidence that Trump has a fundamental aversion to violence, and much evidence that he takes pleasure in it when it is committed by his allies against his enemies.
Similarly, Castor argued that the president's speech encouraging them to march to the Capitol and "fight like hell" may have caused the violence, as some of the attackers were prepared for violence earlier on Jan. 6.
"This was a pre-planned attack, make no mistake about it," Castor said. "The president did not cause the unrest."
The fact that some rallyers were prepared for violence before the speech did not mean that they were all. Violent militiamen from groups like the Proud Boys and the Oathkeepers make up only a fraction of the uprising's arrests. It is possible that a hardcore minority was ready to attack Congress, but a much larger percentage of the pro-Trump crowd chose to join them after the president's heated rhetoric inspired them to do so.
But Castor's reasoning is also missing something more fundamental: If Trump hadn't mistakenly labeled the election "stolen" for months and urged his supporters to help him overthrow them, there would have been no pre-planned violence in the EU in first place. This whole series of events only became conceivable because Trump had launched an ongoing and successful campaign to convince millions of Americans that there was a shameful conspiracy to destroy American democracy. They planned to use violence before the rally because they believed the lies Trump had told them; In fact, the property managers showed a video of people storming the Capitol saying they were acting on Trump's orders.
A rioter holds a Trump flag in the U.S. Capitol on Jan. 6.
Win McNamee / Getty Images
Castor made a similar mistake when discussing Trump's infamous January 2 call to Georgian Foreign Secretary Brad Raffensperger. He argued that during that private phone call – during which Trump asked Raffensperger to find enough votes to overthrow Joe Biden's Georgia victory – Trump had not attempted to instigate riots and that it was therefore irrelevant.
However, this was not the purpose of the property manager's discussion of this call.
Their point of view was that the call was an improper and arguably illegal effort to reverse the results of a legitimate election, proving that Trump intended to undermine the electoral and legal system in order to stand up as president. This is clear enough when you read the article on impeachment, which describes the call as part of Trump's "previous efforts to undermine and hamper the confirmation of the 2020 presidential election results" – not a direct effort to end the attack on that To encourage Capitol itself.
Perhaps the strongest argument Castor made is Trump's Jan. 6 speech, which the House allegedly helped stimulate the rally and which specifically urged protesters to act peacefully.
"The statements by the president expressly encouraged those present to exercise their rights peacefully and patriotically," said Castor. "The whole premise of what he said was that the democratic process would and should be according to the letter of the law."
It is correct to say that the text of Trump's speech gives him some cover and that he never directly tells his followers, "do violence now". This could even lead to his acquittal in an actual criminal case where the standard required for conviction is different and rightly higher than in an impeachment trial that does not use jail as a punishment.
But the line Castor quoted just that – one line – in a speech full of inflammatory rhetoric, including a direct appeal to march on the Capitol and "fight like hell". You don't have to support violence in the nude to create a situation where it is foreseeable that it could occur.
This is also why Trump's inaction is vital in the face of the violence he watched live on television: his refusal to call in the National Guard says much more about what he wanted than a pro forma line about peaceful protest. You can't create a situation where violence is unlikely, let that violence unfold, and then off the hook for a fine print disclaimer in the speech.
What Trump's lawyers didn't say was just as important as what they did
Trump's reaction after the attack was not accidental in the case of the property managers. In fact, it was the center of it.
In Rep. Jamie Raskin's (D-MD) concluding arguments, he asked Trump's defense four questions that he believed would have to be answered if they were to “answer the overwhelming, detailed, specific, factual, and documentary evidence that we introduced. "They all focused on the president's actions during the attack, which Raskin and the Democrats believed were damned evidence of his intent to allow the violence to unfold:
First, why didn't President Trump tell his supporters to stop the attack on the Capitol as soon as he learned about it?
Why didn't President Trump do anything for at least two hours after the attack started to stop the attack?
As our Constitutional Supreme Commander, why did he not do anything for at least two hours on January 6th after the attack began to send aid to our overburdened and beleaguered law enforcement officers?
On January 6, why did President Trump not condemn the violent uprising and insurgents at any time on that day?
At no point in Castor's presentation did he even attempt to answer any of Raskin's questions. During the Q&A that followed, Sens. Lisa Murkowski (R-AK) and Susan Collins (R-ME) asked a version of these questions directly to Trump's team. "When exactly did President Trump find out about the violation of the Capitol, and what specific measures did he take to end the riots and when did he take them?"
The Trump team responded:
There is a lot of interaction between the authorities and the requirement that people be safe that day beforehand. We have a tweet at 2:38 p.m., it was certainly sometime before. In the rush to initiate this impeachment process, this has not been investigated and that is the problem with the whole process. The property managers (have) failed to investigate and the American people deserve a lot more than come here without evidence – hearsay after hearsay and reports that include hearsay. What is required here is due process that has been refused.
This is not an answer, of course – it is an evasion, much like all of Castor's presentations before. Trump's team didn't have good answers to Raskin's questions because there is no such answer.
Trump's behavior on January 6th and before was really unjustifiable. It was inevitable that any attempt to defend it would fail.