Return to Transcripts main page


Trump Defense Team Presents Case to Acquit Trump. Aired 1:30-2p ET

Aired February 12, 2021 - 13:30   ET



MICHAEL VAN DER VEEN, TRUMP IMPEACHMENT ATTORNEY: And that, too, is total intellectual dishonesty.

The Supreme Court has long held that the First Amendment's right to freedom of speech protects elected officials.

Two important on-point decisions from the Supreme Court, Wood v. Georgia, and Bond v. Floyd, expressly contradict the House managers' position.

The House managers do not even cite those cases in their brief. They barely acknowledge them in their reply. And they were mum on them yesterday.

In Wood v. Georgia, the Supreme Court addressed a case involving a sitting sheriff whose re-election was being investigated by a grand jury impaneled by a judge based on allegations of irregular Negro block voting. It was in the '60s.

The sheriff spoke publicly in multiple press releases calling the grand jury investigations racist, illegitimate, and an attempt to intimidate voters.

He even urged the grand jurors on how to decide the issues and not let its high office be a party to any political attempt to intimidate voters.

The sheriff viewed the grand jury as challenging the legitimacy of his election.

The sheriff even sent a letter to the grand jurors with these allegations, which is an extraordinary step since laws in most states, including Georgia, prohibit attempts to influence or intimidate jurors.

The sheriff was charged and convicted of contempt of court and obstruction of the grand jury.

But the Supreme Court, in a decision written by Justice Brennan, reversed. The court held that the First Amendment protected an elected public

official's speech because the voting controversy directly affected the sheriff's political career, G-29.

"The petitioner was an elected official and had" -- read with me, please, everybody.

"The petitioner was an elected official and had the right to enter the field of political controversy, particularly where his political life was at stake. The role that elected officials play in our society makes it all the more imperative that they be allowed freely to express themselves on matters of current public importance."

Wood, thus, stands for the proposition that a difference of political opinion expressed in the speech on an issue of voting irregularity cannot be punishable where all that was done was to encourage investigation and peaceful political speech.

Just like Mr. Trump has done here. The legal scholars call that directly on point.

A second case, Bond v. Floyd, involved a state legislature punishing an elected official for protected political speech.

Bond is particularly instructive here, too.

In Bond, the Supreme Court squarely addressed the question of an elected official's punishment by a legislature for statements alleged to have incited public violation of the law, the burning of draft cards.

The court unequivocally rejected the idea, advanced here by the House managers, that an elected official is entitled to no protection under the First Amendment.

The Supreme Court held that the Georgia House of Representatives was, in fact, forbidden by the First Amendment from punishing Bond, by not seating him, for advocating against the policy of the United States.

There are three fundamental holdings in Bond.

One, "The manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy."

Two, "Just as erroneous statements must be protected to give freedom of expression the breathing space it needs to survive, so statements criticizing public policy and the implementation of it must be similarly protected."


Third holding, "Legislators have an obligation to take positions on controversial political questions so that their constituents can be fully informed by them and be better able to assess their qualifications --" please, read along with me -- "their qualifications for office. Also so they may be represented in governmental debates by the person to have elected to represent them."

Mr. Trump enjoys this same First Amendment protection from Congress. The First Amendment's protections guarantee free speech addressing the electoral integrity issues essential to his career that Mr. Trump has consistently advocated.

The House managers argue that the First Amendment, and I quote, "does not shield the public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important governmental interests."

That is flat wrong. They are, in essence, attempting to treat Mr. Trump as their employee. This is not the law under Wood and Bond.

Mr. Trump was elected by the people. He is an elected official. The Supreme Court says elected officials must have the right to freely engage in public speech.

Indeed, the Supreme Court expressly rejected the House managers' argument in Wood v. Georgia, holding that the sheriff was not a civil servant but an elected official who had core First Amendment rights which could not be restricted. That's Wood v. Georgia, page 395, footnote 21.

The House managers do not mention Wood or Bond in the trial brief or anywhere else? Why? Why not?

Because it does not fit their narrative or their story. They want to punish Mr. Trump for engaging in constitutionally protected free speech. And they do not want you to consider the issue. But you must.

Question two: Does Mr. Trump's speech deserve protection under the First Amendment?

There's no doubt Mr. Trump engaged in constitutionally protected political speech that the House has improperly characterized as incitement of insurrection.

The fatal flaw of the House's argument is that it seeks to mete out governmental punishment, impeachment, based on First Amendment political speech.

Speech for political purposes is the kind of activity to which the First Amendment offers its strongest protection.

These are bedrock principles recognized by our Supreme Court for decades.

The court has stated in no uncertain terms the importance of these principles toward democratic principles.

The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions.

"The constitutional safeguard, we have said, was fashioned to ensure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." "New York Times" v. Sullivan.

Our First Amendment decisions have created a rough hierarchy in the constitutional protection of speech. Core political speeches occupy the highest, most protected position.

Even political speech that may incite unlawful conduct is protected from the reach of government punishment.

The court has said every idea is an incitement. And if speech may be suppressed when it might inspire someone to act unlawfully, then there's no limit to the state's censorial power.

The government may not prohibit speech because it increases the chances of an unlawful act will be committed at some indefinite time in the future.


The House manager showed you a series of tweets going all the way back to 2015 in an effort to prove incitement. All of that evidence is totally irrelevant under the constitutional definition of incitement.

Brandenburg v. Ohio is really the landmark case on the issue of incitement speech. Half of the case was mentioned yesterday.

In the Brandenburg v. Ohio, another landmark, the court held the government may only -- the government may only suppress speech for advocating the use of force or a violation of law if such advocacy is directed to inciting or producing eminent lawless action and is likely to incite or produce such action.

The Brandenburg holding has been interpreted as having three basic prongs to determine if speech meet the definition of incitement.

The Brandenburg test precludes speech from being sanctioned as incitement to a riot unless, one, "The speech explicitly or implicitly encouraged use of violence or lawless action."

Two, "The speaker intends that his speech will result in use of violence or lawless action."

And, three, "The imminent use of violence or lawless action is likely -- is the likely result of the speech."

The House managers cannot get past the first prong of the Brandenburg test. They have not and cannot prove Mr. Trump explicitly or implicitly encouraged use of violence or lawless action, period.

Brandenburg requires a close examination of the words themselves. The words are either important or they're not.

The House managers admitted that the incitement issue is not about the words. Why not? Because, on the face of it, Mr. Trump's words are no different than

the figurative speech used by every one of the Senators assembled here today.

If it is not about the words but about the big lie of a stolen election, then why isn't House Manager Raskin guilty since he tried to overturn the 2016 election?

The more the House managers speak, the more hypocrisy gets revealed. Hypocrisy.

Even though they say it's not about the words, the law under Brandenburg requires a close analysis of the words to determine incitement. So we need to look at those words.

Mr. Trump did the opposite of advocating for lawless action. The opposite.

He expressly advocated for peaceful action at the Save America rally. He explicitly stated -- these are the words: "I know that everyone here will soon be marching over to the capitol building to peacefully and patriotically make your voices heard."

"To peacefully and patriotically make your voices heard." That is how this president has spoken for years when he condemns violence, lawlessness and rioters.

The House managers have played manipulated, selectively edited parts of Mr. Trump's speech. They focus heavily on the word "fight."

The president used the word "fight" 20 times in his speech. They picked only two. Why? Why not the other 18? Because they don't tell the story the way they want to tell it.


Here are all of them. Listen to the context.




TRUMP: He's got guts. You know what, he's got guts. Unlike a lot of people in the Republican Party, he's got guts. He fights. He fights.

And I'll tell you, thank you very much, John. Fantastic job.

I watched -- that's a tough act to follow, those two.

There's so many weak Republicans. And we have great ones. Jim Jordan and some of these guys, they're out there fighting. The House guys are fighting. But it's incredible. Many of the Republicans, I helped them get in. I helped them get

elected. How do you say, I want to get rid of America First? Even if you're going to do it, don't talk about it, right?

Unbelievable, what we have to go through. What we have to go through.

And you have to get your people to fight. And if they don't fight, we have to primary the hell out of the ones that don't fight.


TRUMP: You primary them.


TRUMP: We're going to let you know who they are. I can already tell you, frankly.


TRUMP: Republicans are constantly fighting like a boxer with his hands tied behind his back. It's like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we're going to have to fight much harder.


TRUMP: And Mike Pence is going to have to come through for us. And if he doesn't, that will be a sad day for our country. Because you're sworn to uphold our Constitution.


TRUMP: And the accountability says, if we see somebody in there that doesn't treat our vets well or they steal, they rob, they do things badly, we say, Joe, you're fired. Get out of here.


TRUMP: Before, you couldn't do that. You couldn't do that before.

So we've taken care of things. We've done things like nobody has ever thought possible.

And that's part of the reason many people don't like us because we've done too much. But we've done it quickly.

And we were going to sit at home and watch a big victory. And everybody had us down for a victory. It was going to be great. And now we're out here fitting.

And said to somebody I was going to take a few days and relax after our big electoral victory Ten o'clock it was over.

The American people do not believe the corrupt fake news anymore.


TRUMP: They have ruined their reputation.


TRUMP: But you know, it used to be that they would argue with me. I'd fight. So I'd fight, they'd fight, I'd fight, they'd fight. Bump, bump. You believe me, you believe them. Somebody comes out. You know, they had their point of view, I had my point of view.

But you would have an argument. Now what they do is they go silent. It's called suppression. That's what happens in a Communist country. That's what they do. They suppress.

You don't fight with them anymore. Unless it's a bad story. They have a little bad story about me, they make it ten times worse and it's a major headline.

But Hunter Biden, they don't talk about him. What happened to Hunter? Where's Hunter?


TRUMP: With your help over the last four years, we built the greatest political movement in the history of our country. And nobody even challenges that.

I say that over and over. And I never get challenged by the fake news. And they challenge almost everything we say.

But our fight against the big donors, big media, big tech and others is just getting started. This is the greatest in history. There's never been a movement like that.


TRUMP: Our brightest days are before us. Our greatest achievements still wait.

I think one of our greatest achievements will be election security. Because nobody, until I came along, had any idea how corrupt our elections were.

And again, most people would stand there at 9:00 in the evening and say, "I want to thank you very much," and they go off to some other life. But I said something is wrong here. Something is really wrong. Can't have happened.

And we fight. We fight like hell. And if you don't fight like hell, you're not going to have a country anymore.


TRUMP: Our exciting adventures and boldest endeavors have not yet begun, my fellow Americans, for our movement, for our children, and for our beloved country. And I say this despite all that's happened, the best is yet to come.



VAN DER VEEN: A boxer fighting with his hand tied behind his back? Members of Congress fighting? Rudy being Rudy. These are metaphorical rhetorical uses of the word "fight."

We all know that, right? Suddenly, the word "fight" is off limits?


Spare us the hypocrisy and false indignation. It's a term 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.

But don't take it from me. It's best to listen from them.


UNIDENTIFIED CONGRESSWOMAN: Our mission is to fight.


KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: We are in a fight. We are in a fight. We are in a fight.

SEN. CHUCK SCHUMER (D-NY): Democrats are fighting as hard as we can.

REP. DAVID CICILLINE (D-RI): Democrats are standing up to fight.

HARRIS: We know how to fight. We like a good fight.

SCHUMER: Democrats are going to fight like hell.

REP. ERIC SWALWELL (R-CA): We fight like hell.

I'm going to fight like hell.

UNIDENTIFIED CONGRESSMAN: I will fight like hell.

SEN. RICHARD BLUMENTHAL (D-CT): We're going to fight like hell.

I'm going to fight like hell.

I will fight like hell.

SEN. JACKY ROSEN (D-NV): We have to fight like hell.

UNIDENTIFIED CONGRESSWOMAN: We have to fight like hell.

SEN. BERNIE SANDERS (I-VT): I and many of the Senators and members of the House will fight like hell.

UNIDENTIFIED CONGRESSMAN: We are going to fight like hell.

UNIDENTIFIED CONGRESSWOMAN: We're going to fight -- like hell.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: We're going to fight like hell.

REP. NANCY PELOSI (D-CA): And we just have to fight.

HILLARY CLINTON, (D), FORMER PRESIDENTIAL CANDIDATE & FORMER SECRETARY OF STATE: We're going to fight. We are going to fight. We're going to fight! We're going to fight!

REP. TED LIEU (D-CA) Because we'll fight.


SANDERS: Political revolution. That means that millions --

Millions --

Millions --

Have got to stand up and fight.

And fight and fight.

Stand up and fight back.


BIDEN: And continue to fight.

Once again, fight back in the fight.

SCHUMER: We're fighting back.

UNIDENTIFIED CONGRESSWOMAN: In my fight, to fight an administration.

SEN. ELIZABETH WARREN (D-MA): You don't get what you don't fight for.

REP. JOAQUIN CASTRO (D-TX): We'll also fight him and challenge him in every way that we can.

SEN. TIM KAINE (D-VA): Fight in the Congress, fight in the courts, fight in the streets.

CASTRO: In the Congress, in the courts and in the streets.

REP. JAMIE RASKIN (D-MD): There's the fight, there's the fight, there's the fight, and then there's the fight to defend.

REP. DIANA DEGETTE (D-CO): We're eager to take on this fight.

HARRIS: The American people are going to have to fight. WARREN: Get in this fight.


DEGETTE: Get in this fight.

SEN. CORY BOOKER (D-NJ): Around-the-clock fighting.

We've got to keep fighting and keep focused.

PETE BUTTIGIEG, (D), FORMER PRESIDENTIAL CANDIDATE: We will fight when we must fight.

JULIAN CASTRO, (D), FORMER PRESIDENTIAL CANDIDATE: We've been fighting and we need to fight, but we also need to fight.

BIDEN: It's always going to be an uphill fight.

UNIDENTIFIED CONGRESSWOMAN: This is always going to be a fight.

HARRIS: We always must fight.

BUTTIGIEG: We're in the fight of our lives.

CICILLINE: And we're going to be in for the fight of our lives.

KAINE: This is the fight of our lives.

BIDEN: The fight of their lives.

WARREN: We are in this fight for our lives!

HARRIS: We cannot ever give up fighting.


VAN DER VEEN: Hypocrisy.

The reality is Mr. Trump was not, in any way, shape or form, instructing these people to fight or to use physical violence.

What he was instructing them to do was to challenge their opponents in primary elections to push for sweeping election reforms, to hold big tech responsible.

All customary and legal ways to petition your government for redress of grievances, which, of course, is also protected constitutional speech.

But the House managers don't want you to focus on those things, because, again, it does not fit their story.

In the end, I leave you with this quote from Benjamin Franklin: "Freedom of speech is a principal pillar of a free government. When this support is taken away, the Constitution of a free society is dissolved and tyranny is erected on its ruins." Thank you.

SCHUMER: Mr. President?

SEN. PATRICK LEAHY (D-VT): The majority leader?

SCHUMER: I ask unanimous consent, the Senate recess for a 15-minute break.

LEAHY: Without objection.

JAKE TAPPER, CNN HOST: A brief break in the proceedings there. The Trump legal defense team is attempting to defend President Trump, former President Trump from the impeachment article that he incited the deadly mob, the deadly riot on the capitol on January 6th.

You heard from a few of the president's attorneys making their presentation.

Let's talk about this with Dana Bash and Abby Phillip here in-studio with me while the group there, the Senators and the House impeachment managers and the president's lawyers take a 15-minute break.

Not the most constitutionally sophisticated argument, I think it's fair to say. Neither Mr. Schoen nor Mr. Van der Veek (sic) --


TAPPER: Van Der Veen, sorry, are constitutional scholars. Van Der Veen is actually a personal injury attorney from Philadelphia, as you heard in his voice there, the accent.


But one thing I wanted to note is I think that he made a couple of points that probably landed OK with the audience.

First, that the idea that President Trump using the word "fight" didn't necessarily mean go to the capitol and commit mayhem, given the context of the other times the president used the word "fight" in that speech.

But that's as if that speech and the word "fight" was the only evidence against Donald Trump.

BASH: Yes.

TAPPER: And it's not.

We have months and months and months of the big lie, of the election lie. And today was basically a legal demonstration of, "what aboutism." What about the time that this congressman said this? What about the time that this losing candidate said that?

Times that there was no violence that followed what they said.

BASH: Right. And let's just play along with that game. Let's play the "what about?" game and let's follow down that path.

What about all of those times, so many of them taken out of context, the Democrats used the word "fight?"

They weren't doing it to a rabid crowd, many of them who were armed after, as you said, spending many, many weeks priming them in anger and in frustration, and, frankly, in violence, about something that was not true.

It is the context that matters. And none of those Democrats did what they did and said what they said in the context that Donald Trump is talking about.

And most importantly, what they did not show there was the fact that so many people in that crowd -- and we saw them on tape, over and over again, during the House managers' presentation -- said that they believed that they were doing this violence in the name of Donald Trump, because he told them to do that.

TAPPER: Dozens and dozens of them have said that, yes.

BASH: Dozens.

ABBY PHILLIP, CNN ANCHOR, "INSIDE POLITICS SUNDAY": During and after. Some of them said it while at the capitol.

BASH: Exactly.

PHILLIP: So it's not as if this is something coming out of thin air.

I also thought that the lawyers' argument also hinged on the complete falsehood, which is the idea Trump didn't intend -- we were discussing this earlier -- that Trump didn't intend to disrupt the electoral process on that day.

That his whole point of gathering people on January 6th was simply to, you know, to express his grievances about fraud and the election, and that he didn't have any sort of intention about what was actually happening in the capitol that day.

And that's not true. I mean, we know it's not true, because he was pressuring Pence during his speech, and during the riots --


PHILLIP: -- to -- to stop the process of counting the electoral votes.

So the only way that you sort of imply that Trump was giving this speech in this vacuum and was just using ordinary political speech -- that's literally what they said -- is if you take it out of the context, why were they gathered on that day? Why on that particular day?

Why did his supporters interpret their orders, according to them, from Trump as being, to stop that process?

That was the last opportunity that they had and they knew it, and they knew it, because Trump told them so.

TAPPER: It was a very partisan argument. Whereas, the Democrats, even though the House impeachment managers are some of the most partisan Democrats in the House, Jamie Raskin, Eric Swalwell, Ted Lieu.

They have bent over backwards to try to not be partisan because they're trying to win over Republican Senators.


TAPPER: They're trying to win over the Mitt Romneys, Ben Sasses and Susan Collins.

This presentation was very partisan. It was a Sean Hannity mix tape at times.

BASH: Almost literally.

TAPPER: It was, hear all the times Democrats have said things that violated basic norms.

BASH: Yes.

TAPPER: Here are some evidence of hypocrisy by House Democrats.

All true. I mean, good arguments to make, but not particularly relevant to what Donald Trump did and what we all saw him do.

And, in fact, Abby, we talked about this while the presentation was going on. A couple of supporters of President Trump, Amy Kremer and her daughter, who are part of this group, very vocal. They used to be active with the Tea Party before.

And now they're active with the Women for Trump movement. And they held these rallies -- "Buzzfeed" did a great story on this -- rallies across the country leading up to January 6th. Where very violent things, very violent things were said.


And apparently, in a couple of their tweets, they misspelled "cavalry." "The cavalry is coming, Mr. Trump." Just for -- as somebody who learned this the hard way about 15 years ago, the cavalry, C-A-V-, is the Army fighters.