Skip to main content

  U.S. Senate Impeachment Trial Defense Arguments  CSPAN  February 12, 2021 2:34pm-3:19pm EST

2:34 pm
the framers were fearful that any impeachment process that gave congress full discretion on the standard for impeachment would constitute nothing less then a violation quote, a violation of the fundamental principle of good government. one founding father, james wilson, wrote extensively on the impeachment process. mr. wilson was a renowned legal scholar at the time, a law professor at the university of pennsylvania in philadelphia. he was a major force in drafting and adopting the constitution in 1787. >> senators will take their seats.
2:35 pm
who seeks recognition? mr. cassidy -- mr. castor is recognized. >> mr. president, good afternoon. it has been my great leverage over the past couple of weeks to lead this outstanding team of lawyers and dedicated professionals in the defense of the 45th president of the united states. one of the most difficult things and leading such a talented group is deciding who's responsible for what and the strategy in the order in which we will present our evidence.
2:36 pm
you have heard from mr. vanderveen and mr. david schoen on the importance of the first amendment and the importance of due process of law. because i had the opportunity to set out the schedule i decided that i would take the last substantive part of the case for myself. you can take that two ways. the first perhaps is the best and that would be that it's almost over. the second is that perhaps you have to wait another hour for it to be over. the reason why i chose this section, believe me, it was a very difficult decision to make because i thought the other arguments presented by mr. schon and mr. vanderveen were outstandingly researched, thoroughly vetted and wonderfully and articulately presented by them.
2:37 pm
but the critical issue in this case is the very narrow issue that is charged against the 45th president and that issue is did the 45th president engaged in incitement of and they continue to say insurrection. clearly, there was no insurrection. insurrection is a term defined in the law and involves taking over a country, shadow government, taking the tv stations over and having some plan on what you will do when you finally take power. clearly this is not that. what are colleagues here across the aisle meant is incitement to violence and to riot so the word incitement is a critical case
2:38 pm
and the critical issue indicates that the first time you heard from us and i told you that you would never hear from our side that what happened on january 6 was anything other than horrific and that the 45th president of the united states and his lawyers and his entire team adamantly denounce that violence by that criminal that occurred in this very chamber, in this very building. and there was a reason why we started our presentation back on tuesday and that way because i did not want the senators to consider that there was any challenge to that particular fact.
2:39 pm
in the act, the house managers knowing it was not contested at all chose to spend 14 plus hours showing you pictures of how horrific the attack on the united states capital was. they spent no time at all in connecting legally the attack on the capital to the 45th president of the united states, which is the only question that needs to be answered, was donald trump responsible for inciting the violence that came to this building on january 6. by any measure president trump
2:40 pm
is the most pro- police, anti- mob rule president this country has ever seen. his real supporters know this and he made it clear throughout his presidency and he made it clear through the violence this past summer and made it clear on january 6 but politics changes things. politics has created and interposed an element that should not be here and interposed the element of hatred and the political world changes when hatred comes part of the dynamic. as we wrote in our answer the
2:41 pm
original charging documents and i hope that this is a phrase that lives on long after we are all departed and i hope that someday this becomes the mantra by which all of us operate who work for the benefit of the public and political hatred has no place in the american justice system and most certainly no place in the congress of the united states. and to illustrate the contrast that i am speaking of we have a video. >> i am your president of law and order and an ally of all peaceful protesters. >> the vast majority of the protesters were peaceful.
2:42 pm
>> republicans stand for law and order and justice spirit i just don't even know why there aren't uprisings all over the country. >> my and administration will always stand against violence among mayhem and disorders back there needs to be unrest in the streets for as long as there is unrest in our lives. >> i stand with the hero of law and order. >> use around them and tell them that they are not welcome anymore, anywhere. >> we will never defund our police. together we will ensure that america is a nation of law and order. >> in high school i would take in behind the gym and beat the hell out of him spirit i would punch him in the face. >> i just want law and order. everyone wants that. >> i want to tell you, i want to tell you kavanaugh that you have released a whirlwind and you will pay the price. >> we want law and order.
2:43 pm
smack show me where it says that protesters are is supposed to be polite and peaceful? >> we believe in safe streets, secure communities and believe in law and order. >> is virtually anyone in this chamber who disagrees with the words as spoken by president trump on that video. surely not, surely not. and this contrast and in this context and i ask you to keep that in mind. my colleagues here and my colleague here mr. raskin hopes that you don't and they have used selective editing and many belated visuals to paint a picture far different from this truth, make no mistake and i will repeat it anytime i'm ever
2:44 pm
asked. january 6 was a terrible day for our country and the attack on this building shocked us all. president trump did not incite or cause the horrific violence that occurred on january 62021 and they know that. we know the president did not incite the riots because of his plain words that day as mr. vanderveen elucidated on two moments ago. we know the president could not have incited the riots because of the timeline of the events of that day. we heard a great deal from the house managers about their prosecutorial bona fides and their ability to analyze evidence and apply the statutes and use timelines and figure out what happened based on circumstantial evidence and direct evidence and testimony and forensic analysis and i can't recall any of the house
2:45 pm
managers who got up that didn't make some reference to prosecutorial bona fides. well, i spent more than three decades locking up killers and i do know a little bit about applying the facts to the law. we know that the president would never have wanted such a riot to occur because his long-standing hatred for violent protesters and his love for law and order is on display, worn on his sleeve everything will day that he served in the white house. but if we are going to apply the facts to the statute it has to be done systematically and it has to be done with precision, the way a court would expect us to do that. let's look at the letter of the
2:46 pm
law. again, mr. vanderveen gave you an overview of the brandenburg case and some of the related cases and you notice that when mr. vanderveen listed the elements that he took verbatim or post verbatim right out of vanderburgh they bore no reference whatsoever to the elements that were flashed up by the democrats managers the other day repeatedly and he actually used the supreme court case. he didn't make it up. let's look at the letter of the law. the supreme court of the united states over 50 years ago laid out a clear test to determine whether speech is incitement and under that test the brandenburg versus ohio test, there are three elements that must be proven beyond a reasonable doubt, preponderance of the evidence and whatever the senate considers, i suggest, beyond a reasonable doubt.
2:47 pm
first, the speech in question must explicitly or implicitly encourage the use of violence or lawless action but here the president's speech called for a peaceful protest. second, the speaker must intend that his speech will result in the use of violence or lawless action and again, as mr. vanderveen pointed out the president clearly deplored writers 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. finally, the third element under the brandenburg test is the imminent use of violence, imminent use of violence, in other words, right then the imminent use of violence or lawless action must be the
2:48 pm
likely result of the speech and the likely result of the speech and that argument is completely eviscerated by the fact that the violence was preplanned as confirmed by the fbi, department of justice and even the house managers, not the result of a speech at all. several of my colleagues in the house managers got up and spoke about the proceeding in the house being like a grand jury proceeding. well, i've been in grand jury proceedings and i run grand juries. in grand jury proceedings you call witnesses and hear evidence and you make transcripts and take affidavits and develop physical evidence and you hear reports from police officers in here forensic analysis from scientists. in fact, you invite the target of the grand jury to come in and
2:49 pm
testify if he or she pleases to be heard by the grand jury. which one of those things happened in the house prior to the impeachment article? i don't believe any of them so this suggestion that what happened in the house was anything at all like a grand jury investigating a case in preferring it for prosecution is complete nonsense and if the house managers are trying to fool you about that you must ask yourself what else are they trying to fool you about? let's look more closely at the president's speech. we have mentioned this line before but it is so critical that we need to talk about it
2:50 pm
again. the president asked that the attendees at his rally peacefully make their voices heard. >> i know that everyone here will sue be marching over the capital building to peacefully and patriotically make your voices heard. >> the managers would have you believe that the president's supporters usually follow his every word but in this case imputed some imaginary meaning to them while ignoring his most clear instructions. president trump said peacefully and patriotically make your voices heard in the house managers heard or took from that go down to the capital and riot. you are supposed to put your cells in the heads of peaceful
2:51 pm
people who hear part peacefully heard and conclude that those words do not mean what the president said. and more than that, the president criticized the destruction wrought by this left wing anarchists and rioters and told his supporters that they build what they don't destroy. >> if this happened to the democrats they would be hell all over the country going on. there would be hell all over the country but just remember this, you are stronger, you're smarter and you've got more going than anybody and they try and demean everybody having to do with us and you are the real people and you are the people that built this nation and they are not the people that tore down our nation. >> is it possible listening to those words in the proper
2:52 pm
cadence without them being edited or the sound change so that they are indistinguishable or sound as though the crowd is read there but listening to it as you have here on edited by us, is it possible that president trump's disdain for political violence could be any clearer to the persons listening as he was speaking? is it possible that his words could have been misunderstood? i suggest to you, that is impossible. the house managers said the president told the crowd quote, you have to get out your people to fight. the house managers claim that the president of the united states was telling the audience to get each other to physically
2:53 pm
fight but that is not what the president said. the people who should fight, he said, were members of congress and if they don't fight, what the president said is, what should the rally attendees do? if members of congress will not fight for the crucibles they held dear, what was it that the president specifically told his supporters at that rally he wanted them to do? he wanted them to support primary challenges. now, nobody in this chamber is anxious to have a primary challenge and that is one truism i can say with some certainty. but that is the way we operate in this country and when the people of a state want to change
2:54 pm
their representatives and their senators they use the electoral process. president trump told his listeners that if there members of congress won't fight for their views then go back home and find others that will. that is what president trump said in the people we should fight our members of congress. >> you have to get your people to fight. he told them. >> you have to get your people to fight and if they don't fight you have to have the primary the hell out of the ones that don't fight. we will let you know who they are and i can already tell you frankly. >> it is pretty stark contrast when you watch that video, isn't it? when you see the house manager tell you and i don't know if we
2:55 pm
are under oath here but when i walked into this room i sure as heck felt like i was under oath and i was speaking, not only to senators of the united states but before the entire world and with god watching. a house manager, god appear in told you that the president of the united states on january 6, 2021 told the crowd that they had to go and fight and the implication that they wanted you to draw was that he was sending them down to capitol hill to go and breach the building and trash the very sacred halls of congress. but we now know that it is not at all anything near what the president said. what the president said was, if you can't get your members of congress to do as you would like them to do, you primary them and
2:56 pm
that is the american way. the first way that the house managers presented and wanted you to conclude is the criminal way. what the president said was the american way. again, house managers manipulated president trump's words and i can't stand here and pretend to tell you that i know every time from all those videos that the house managers manipulated what the president said and put up evidence that was not what the foundation of correctness and admissibility we expect and i can't tell you that i picked up everyone and i don't think mr. van der veen or mr. schoen or any of the others worked with with us can tell you that but what i can tell you is
2:57 pm
that there were an awful lot of times and i know that at least some of you were judges in previous lives and if one of the lawyers was able to create the impression that one side intentionally presented false or misleading evidence and that judge would give an instruction called false sue no, false anonymous, falls in one thing, false in everything. in other words, if they are trying to full you about one thing then not only might they be trying to fool you and something else but under that maximum of the law you may conclude that they are trying to fool you in everything else. president trump was immediate
2:58 pm
and his calls for calm and respect for law-enforcement and the house managers emphasized resident trumps tweets in that 6:00 p.m. hour where he told the crowd to quote, go home in love and peace and remember this day and what is it that they left out? the house starts there recitation of what president trump said as far as the aftermath of when the capital was breached roughly 6:00 p.m. and what they don't tell you and didn't tell you and what you probably do not know because i think on the first one to say it in this forum is that at 2:38 president trump urged protesters at the u.s. capitol to quote, stay peaceful, please support our capitol police and law enforcement and they are
2:59 pm
truly on the side of our country, stay peaceful and before we run to the graphic i want to point out to you president trump's speech ended at 1:11 so at 2:38 p.m. by the time word reaches the president that there was a problem down here he was out urging people to support the police, stay peaceful, support our capital police and law enforcement and they are on the side of the country. stay peaceful. at 3:13 p.m. president trump urged protesters at the u.s. capitol to remain peaceful and no violence, remember, we are the party of law and order. respect the law and are great
3:00 pm
men and women in blue. 3:13 p.m. president trump's words could not have incited a riot at the capital. the days events make this clear. let's walk through the actual timeline. at 11:15 a.m. police security camera video showed crowds forming at first street near the capital reflecting pool. this is a full 45 minutes before president trump even took the stage on january 6. ... castor: you did not hear the impact during the hours and hours of the house managers presentation, did you. when the president spoke, what did he call for.
3:01 pm
he called for rally attendees to peacefully and patriotically make their voices heard read for them to walk down pennsylvania avenue in ventura members of congress. president trump went on for more than an hour. now why is this important. because of all of the events that i'm about to describe, the ball occurred before, before, president trump's remarks concluded. at 12:49 p.m., the first barriers of the u.s. capitol grounds were perched over in the crowd entered the restricted area. and 11 oh 5:00 p.m. acting defense secretary, christopher miller received open source reports of demonstrator movements to the u.s. capital. at one oh 9:00 p.m., u.s. capitol police chief stephen son, called the house and sergeant-at-arms telling them
3:02 pm
that he wanted an emergency declared. any wanted the national guard called. the point, given the timeline of events, the criminals at the capital were not there to even here the president's words . more than a mile away engaged in preplanned assault on this very building. this was a preplanned assault, make no mistake. and that is a critical fact. watch this. >> does anybody in this chamber honestly believe that for the conduct of president trump, that charge of the articles of impeachment. [inaudible]. anybody believes that - >> a spontaneous decision by a bunch of quote protesters to go up to capitol hill and stormed the capital hill. this was all planned out .
3:03 pm
>> how much of it was planned. how much of it was strategized ahead of time. >> is getting impatient . some evidence indicates that there was some . >> there appears to be premeditation. >> internal report of where the b-uppercase-letter day before party to. >> morning of water at the capital. >> award law enforcement agencies about this specific attack. >> be ready to fight. you can hear glass breaking. >> great souls from intelligence the number of individuals were planning to travel to the dc area and cause violence potentially . immediately share that information . [inaudible]. operations to all levels of law enforcement. >> the fbi discovered was place there the night before. a new video.
3:04 pm
[inaudible]. [inaudible]. the fbi now says that the bomb threat was the night before the c-uppercase-letter between 7:38:30 p.m. >> it was planted the day before. >> august to the idea of premeditation. >> this was a plan assault for our capital. castor: so to answer the question of that house manager, does anybody believe that this could have occurred but for the speech from donald trump. i do. all of these facts make clear that the january 6 feet did not cause the riots. president did not cause the riots . he nearly are either or explicitly encourage the use of lands of all his actions but in fact call for peaceful exercise of every american's first minute
3:05 pm
rights to peacefully assemble and petition the government to address the grievances. in other words, brandenburg standard is not laid out. thousand managers invented any facts were unknown. even speaker pelosi admitted not knowing the real cause of the violence when she called for the 911 style commission to examine the facts and causes that led to the violence. on the screen is speaker pelosi's call for the 911 mission. let's touch now on the second observed and allegation in the house managers single article.
3:06 pm
president trump's phone call to georgia secretary of state, van robbins for, recorded by the way. included multiple attorneys and others on the call. that's me point out very obvious fact that the house managers ignored. the private calls made public by others, cannot really be that claim the president intended to incite a riot . because he did not publicly disclose the contents of the call. how can you be hoped to use this call to invite his followers in the annuitant to making the conversation public. and indeed had nothing to do with that being secretly recorded. the house managers tell me that the president demanded that georgia secretary of state quote, find just over 11000
3:07 pm
votes. the word find, like so any others the house managers highlighted is taken completely out of context read in the word find it did not come out of thin air. based on analysis of publicly available voter data, the developed rejection rate in georgia in 2016, was approximately 6.42 percent. and even though a tremendous amount of new first-time mail-in ballots were included in the 2020 count, the georgia rejection rate in 2020, was a mere four tenths of 1 percent . and drop off from 6.42 percent to only .4 percent. president trump's signature verification be done in public. how can a request for signature verification to be done in public be a basis for charge for
3:08 pm
inciting right. with that background, it is clear the president trump's comments in the use of the word, find, or solely related to his concerns that the inexplicable dramatic drop in george's ballot rejection rate. let's examine how the word find was used throughout that conversation. mr. trump's first use of the word find was as follows. quote, we think that if you check the signatures, a real check of the signatures going back to fulton county. you'll find at least a couple of hundred thousand of forged signatures of people who have been forged. and we are quite sure that is going to happen. president trump also use the word find, as follows. quote, now why or not we doing
3:09 pm
signatures and why can't you be open to the public needed and why can't we have professionals do it instead of rank amateurs who will never find anything and don't want to find anything. they do not want to find, you know, they don't want to find anything. someday, you will tell me the reason why. because i do not understand your reasoning. about someday, you will tell me the reason why. but why don't you want to find. president trump echoed his previous sentiments again in a context of pursuing a legitimate and robust investigation into the lack of signature verification from mail-in and absentee ballots . quote, and why cannot we have professionals do it instead of rank amateurs will never find anything who don't want to find anything. they do not want to find anything, you know, they don't want to find anything.
3:10 pm
they don't want to find coming you know they don't want to find anything. and someday you will tell me why. because i don't understand your reasoning for sunday you will tell me why. why don't you want to find, we can go through signature verification we will find hundreds of thousands of signatures and you can let us do it. and the only way that you can do that, as you know, is to go to the past. but you did not do that. you just looked at one page and compared to another party to the only way you can do a signature verification to go from one on november whatever, recently, and compare it to the two years ago or four years ago or six years ago. you know, or even one. you'll find find that you have any different signatures. in fulton, they dumped ballots, you'll find that you have any that are not even signed.
3:11 pm
and as you have any forgeries. ". mr. trump continued to use the word find throughout the conversation. each and every other time in the context of his request, that they undertook a signature and review of signature verifications, and his concerns generally the ballot integrity and as reported electoral deficits. here are a few examples. quote, but why would you not want to find the right answer. read. instead of keep saying, that the numbers are right, because those numbers are so wrong. and another example. and i quote, we think that if you check the signatures, and real check of the signatures, going back to fulton county. you'll find at least a couple of hundred thousand is forged signatures of people who have
3:12 pm
been forged. if we are quite sure that is going to happen. moreover, there was nothing with president trump or any other candidate for that matter, speaking the lead elections officer in the state. that is why the georgia secretary of state took a call along with members of his team. one of whom decided to record it and release it to the press. the only reason this conversation is being discussed in this chamber is because once again, the media and the democratic allies distorted the true conversation to mislead you and the american public. so we have a complete lack of evidence for the article of impeachment presented by the house managers. so why are we here.
3:13 pm
politics their goal is to eliminate a political opponent. to substitute their judgments for the well and the voters. >> why bother with the senate trial of donald trump, there he is no longer present . >> to make sure that he can never run for office again. >> barring him from running from office again and disqualify him from running for office. >> disqualify him from running from office again . >> it is about focusing so that he can never run again. >> remove him for ever running for office again. >> he will never be able to run for office again . >> to ban him from running again . >> if we don't do this, he will get reelected. castor: the goal is to eliminate
3:14 pm
a political opponent to substitute their judgment for the will of the voters. members of the senate, our country needs to get back to work. i know that you know that. but instead, we are here. the majority party promises to unify and deliver more covid-19 relief. but instead, they did this. 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-19 relief to the american people. let us be clear. this trial is about far more than president trump. it is about silencing and
3:15 pm
banning the speech, the majority does not agree with. it is about canceling 75 million trump voters. and criminalizing political viewpoints. that is what this trial is really about. it is the only existential issue before us. and ask for constitutional canceled culture to takeover in the united states senate. are we going to allow canceling and banning and silencing to be sanctioned in this body. to the democrats who viewed this as a moment of opportunity, i urge you instead to look to the
3:16 pm
principles of free expression and free speech. i hope, truly the next time you are in the minority, you don't find yourself in this position. to the republicans in this chamber, i ask when you are next in the majority, please resist was will be an overwhelming temptation to do this very same thing to the opposing party. members of the senate. this concludes the formal defense of the 45th president of the united states to the impeachment article filed by the house of representatives. i understand there's a procedure in place for questions and we
3:17 pm
await them. thereafter, we will close on behalf of president trump. >> mr. president, we yield those were time . >> i ask unanimous consent that we take a 15 recess . >> without objection, we will stand in recess. >> he opened the week for the former president legal team arguing about the constitutionality in this afternoon closing arguments the case by the former president attorneys and this was by bruce castor right in the one article of impeachment incitement of instruction past the house on january 13th. one week after the attack on the u.s. capital on january 6th
3:18 pm
grade as a break here in the senators will return and the attorneys will return for questions on the senators. as the spray continues, will open up our phone lines to hear from you and ask you the questions, did the defense team make their case. in defending the former president, (202)748-8920 is aligned use and 8921 is the one to use for republicans and two oh 27488924 democrats and for independence, mother (202)748-8922. so the defense probably about two and a half hours of comments from the defense team in the republican leader mitch mcconnell makes his way out of the senate chamber. they were allotted 16 hours as for the house managers and they used a little over 11 hours prayed in here probably about two and half hours or so from the team representing donald