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Trump Defense Team Presents Case; Defense Claims First Amendment Protections; Defense's Video Clips Highlight Similar Statements by Democrats. Aired 2-2:30p ET

Aired February 12, 2021 - 14:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


[14:00:00]

JAKE TAPPER, CNN HOST: Now, just for -- as somebody who learned this the hard way, about 15 years ago. The cavalry, C-A-V, is the army, fighters. And the Calvary is a demonstration of Christianity, a crucifix.

ABBY PHILLIP, CNN SENIOR POLITICAL CORRESPONDENT: Well, it's literally the place where Christ was crucified, so it --

TAPPER: Right --

PHILLIP: -- I'll --

TAPPER: -- yes, anyway.

So my only point is they misspelled it. And I'm not criticizing them because I have done that too. They misspelled it. But because they misspelled cavalry by spelling it "Calvary," which maybe, as Christians, they're more used to typing, I don't know.

That was cited by Mr. Schoen as evidence that the House impeachment managers were being dishonest and disingenuous. When obviously, if you look at the context of the tweets --

PHILLIP: It was obviously --

(CROSSTALK)

TAPPER: -- they meant to say cavalry.

No one says "the Calvary is coming," that's not a thing.

PHILLIP: No, not at all. And they made that argument, actually, twice by accusing the impeachment managers of misrepresenting Trump's tweets because they created -- they re-created a visual of a Trump tweet, which they had to do because --

TAPPER: The tweets are gone.

PHILLIP: -- the tweets are gone. Trump does not have a Twitter feed anymore, so you can't take -- you can no longer take a screengrab of something that he tweeted, you have to re-create it. And they used that as evidence that the impeachment managers were

trying to deceive the Congress in their presentation. So I mean, to say that it was a grab-bag of absurdities, and especially that segment --

TAPPER: Yes.

PHILLIP: -- is a real --

TAPPER: And just to be clear, the criticisms they were making were not that the tweets were wrong, or that Donald Trump didn't retweet such-and-such, or that so-and-so didn't tweet such a thing. It was that they mistakenly, in their re-creation of the tweets, put the wrong date -- initially --

UNIDENTIFIED FEMALE : And then they fixed it, but --

TAPPER: -- and then they fixed it, and gave a verification check to somebody who didn't have a verification check. Just stupid.

DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: But there were some things that were just flat-out wrong. Just one example, one of the Trump attorneys said something about the fact that Democrats, for a long time, said that Russia hacked into the 2016 election, and that's not true.

Yes, it is, it is true. And we know that because the Trump Justice Department prosecuted individuals for that because the Trump Justice Department released statement after statement about how they did that. That's different from --

TAPPER: Yes.

BASH: -- collusion, but that's just one example of things that they said that was just not right.

TAPPER: Hacking into the DNC servers to get those --

BASH: Exactly.

TAPPER: -- e-mails, to be specific -- Wolf.

WOLF BLITZER, CNN HOST: All right, Jake, thank you. You guys make excellent points.

You know, John, one thing though, what these two defense lawyers for Trump, Michael van der Veen and David Schoen, did do is reassure the Trump supporters out there, reassure the Republicans who are going to vote to acquit the former president of the United States, that they have some evidence, some case they can make some important points based on what these two lawyers put forward, especially those long video clips, so many of them we've seen on, you know, Hannity and other shows on Fox.

JOHN KING, CNN CHIEF NATIONAL CORRESPONDENT: Yes, they came with a couple of goals. And the two primary goals were please the client, who we know has been mad at his legal team and mad at the power of the presentation made by the House managers. And there's no question, the president's lawyers, former president's lawyers, did that, they pleased the client.

How did they please the client? The first thing said was a lie about the Antifa person being the first person arrested. There were factual mistakes, there were a lot of things taken out of context.

And the video presentation? Gratuitous, over-the-top, repetitive about Democrats using the word "fight." What was that meant to do? Number one, make the client happy, especially the long Elizabeth Warren segment, the return of Hillary Clinton, make the client happy.

But let's be honest here, the fact-checkers will go through that. You will hear the Democrats, when they get their chance later, rebut some of the legal arguments in there, and I suspect some of those rebuttals will be quite strong and powerful.

However, remember the goal of the president's lawyers. Right now, there are five or six Republican votes to convict. You need 17. Their goal is to keep the Republicans, loyal Republicans. One way to keep Republicans loyal Republicans is throw them a whole lot of Democratic red meat, and that was what that was about.

That was not about some argument that's going to be taught in law school five years from now or 25 years from now, or some way to present facts that, you know, professors are going to say, whether it's communications or law, this is how to do it. That was about keeping the Republican convict count as low as possible. And I suspect, in that regard, it will help.

BLITZER: And you're absolutely right. I'm sure the former president was watching. He was enjoying this. Unlike the initial presentation the other day, these two lawyers, they were reading carefully scripted documents. They were not ad-libbing, they were not venting, they were reading what had been prepared, and they had these video clips. There was a little bit of repetition because we've seen these video clips a few times, two or three times, they were playing the same clips.

[14:05:10]

But let me play this -- this exchange, this little clip of the two lawyers, van der Veen and Schoen, making the case why the president, the former president, has the right to freedom of speech.

(BEGIN VIDEO CLIP)

MICHAEL VAN DER VEEN, TRUMP DEFENSE LAWYER: This sham impeachment also poses a serious threat to freedom of speech for political leaders of both parties, at every level of government.

Mr. Trump's speech deserves full protection under the First Amendment.

You have to apply the First Amendment evenly, blindly. She is blind, Lady Justice.

(END VIDEO CLIP)

BLITZER: OK, that was just Michael van der Veen, he's obviously taking the lead right now. He opened, then Schoen continued, then van der Veen came back. We're told that Bruce Castor's going to make a statement when they resume this trial.

KING: Again, there are many of the Republicans, number one, 44 Republicans voted that this was an unconstitutional proceeding. They're supposed to set that aside because they were outvoted. Many of them are not going to set it aside, they're --

(CROSSTALK)

BLITZER: Fifty-six, 44.

KING: -- they're -- 56-44, so a lot of Republicans are going to stay behind process even though they lost the process vote.

And so then the other argument they will make is if this was political speech, maybe you didn't like it, maybe the president was too far, maybe it was too coarse, maybe it was too provocative, but that's protected by the First Amendment.

What the House managers argued is that the president's oath supersedes his First Amendment rights, that he took an oath to the Constitution, and therefore he had the responsibility, he took an oath to defend the Capitol, to defend the country, to not incite and insurrection.

So there is no doubt that you will hear Manager Raskin have to come back and rebut the argument against the First Amendment, because whether you agree with it or not, the First Amendment argument either legitimately holds sway or it is the political place that Republicans who do not want to vote to convict, that is what they will choose.

They wouldn't speak that way, they wouldn't say those things, but in America, the president had the right to say those things. That's where some of the Republicans are staying. So it was not a surprise that the president's lawyers made that argument, they will continue to make it -- former president's lawyers.

And I'm most interested in if the Democrats are taking notes. They've been called misleading, they've been called hypocrites, they've been told that they cheated in their presentation and they've been told their argument on the First Amendment is wrong.

So now the former president's lawyers get to finish, then we get the rebuttal and then, Wolf, we get into the --

(CROSSTALK)

WOLF: And I did some of the math, timing what they were saying. Michael van der Veen, his initial presentation was 22 minutes. Then David Schoen spoke for 42 minutes, a lot of it videotape. And then van der Veen came back and spoke for another 46 minutes. So basically first two hours. And now we're -- I anticipate, based on what van der Veen said at the beginning, Bruce Castor is going to pick up for the defense when we resume this trial -- Anderson.

ANDERSON COOPER, CNN HOST: Yes, let's pick it up with our attorneys here and our political folks. Laura Coates, your first impressions of the defense?

LAURA COATES, CNN SENIOR LEGAL ANALYST: You know, this was really about whataboutism, but not in the way you'd expect. At the end of the day, Raskin said, you know, essentially, what about us? What about the members of Congress? Why did the president not concern himself with us, our wellbeing?

What they did here is say, what about you? What about all of the people in this room, from every senator -- they tried to outline -- to members of the House as well -- about their own conduct. He made it seem as though they were the ones who are now on trial for their own statements.

What they've missed is that this impeachment is whatabout-this-ism. It's not about every instance ever happening, it's not about every statement taken out of context. It's about why this president, who's in the unique position that he's in to guide or quell an incitement, why he chose not to? Why his words, on this occasion, prompted the conduct that actually resulted.

And the more they stray away from that, the more they risk alienating those who are waiting to have the answer to that question. What about us, Mr. President? What happened then?

They have not answered it. They talked about how they actually said that the House impeachment managers have failed to either show the president explicitly or implicitly called people to violence.

And I'm thinking to myself, what did you hear the last 12 to 14 hours of statements about? It was all about that methodical approach to talking about that very instance. But people have selective hearing when they have an audience of one.

COOPER: Norm, I just want to play something that Michael van der Veen said, essentially that it was a small crowd who hijacked an otherwise peaceful demonstration. Let's watch.

(BEGIN VIDEO CLIP)

VAN DER VEEN: On January 6th, a small group who came to engage in violent and menacing behavior, hijacked the event for their own purposes.

(END VIDEO CLIP)

COOPER: Small group, which, when they attacked the Michigan state house and confronted lawmakers and police, the president praised them then.

[14:10:06]

NORMAN EISEN, CNN LEGAL ANALYST: We saw the huge mob, Anderson, with our own eyes, that surrounded the Capitol, the insurrectionists who invaded it. And you know, the whole presentation today is like a parallel reality.

We talked a lot about how careful the managers were not only to lay out the evidence methodically, but to talk to the senators, all the senators, in terms they could understand. And to America, expressly addressing America at the end of the presentation.

This was a fringe distortion of reality that the lawyers put forward, with the repetitive videos, over and over again, the same irrelevant videos. They're talking to a small slice of America, to an audience of one in Trump. And it's the opposite of what we've seen before, and it is going to be devastating and alienating the vast majority of Americans who we know already believe -- more than a majority -- that the president is responsible for this conduct.

COOPER: The -- I mean, some people may see it that way. I mean, Ross Garber, did -- in terms of the supporters of the president, the people who still back the president, they were given enough to hold onto there?

ROSS GARBER, CNN LEGAL ANALYST: Yes. I think, you know, on the first day, the Trump lawyers botched the job, they really did. Today, it seems like a completely different effort.

You know, the audience is Trump, yes, but it's also the Republicans in the room, and it's also the Trump base. And for all of those audiences -- and those are the audiences for these lawyers -- this was an appealing message, it really was.

COOPER: And it really is the message they get on, you know, a Fox program, on some of these other places.

GARBER: All of those things. And it gives these -- you know, the senators who might be wavering, enough to hang their hats on, which is what the focus is.

You know, one thing I thought was also interesting is this was sort of a gambit to the House managers. What -- you know, they talked -- the Trump lawyers talked a lot more about the evidence or lack of evidence than I thought they would, and the questions about the evidence.

They essentially said, you know what, the evidence isn't there, the information that you put on was lacking and unreliable. It sort of threw down the gambit to the House managers to call witnesses and put on other evidence. I don't think they're going to take them up on it, but it was an interesting gambit.

GLORIA BORGER, CNN CHIEF POLITICAL ANALYST: But the House managers asked for Donald Trump to testify, and of course he said no, and he's the one who perhaps could --

GARBER: His lawyers would say that's not his burden.

BORGER: -- help -- that's right.

GARBER: Yes.

BORGER: But what I heard today was a notion that Donald Trump was impeached by the House because he said fight like hell. And everybody says fight like hell, so if Donald Trump said fight like hell, he's just like you.

And that's ridiculous, of course. He's the president of the United States, and it isn't because he just said fight like hell, it's because of everything that occurred before and everything that did not occur after, i.e. telling everybody, you know, calling in the National Guard, et cetera, et cetera.

And I think it -- to me, all the videos seemed to me like they were put together by political people more than attorneys, to appeal to the people you're saying it might appeal to. But it didn't seem to me to be more of a legal argument than it was a political advertisement. And I don't know in the long run if it's going to work for them or not.

COOPER: I want to bring in Jeff Zeleny on Capitol Hill. So, Jeff, if you can, give us a sense, what was going on in the chamber? How did lawmakers react as the defense made their case?

JEFF ZELENY, CNN CHIEF NATIONAL AFFAIRS CORRESPONDENT: Anderson, first and foremost, the Republican side of the chamber was much more full than it was yesterday. At the very beginning, only three chairs were empty. Contrast to yesterday, when the House managers were presenting their case, at least 10 to 15 were empty. So most senators on both sides were paying very careful attention.

Perhaps what was the most remarkable is that Democrats were intentionally trying not to react when they saw themselves on the screens, when they heard their own voices -- really, a laundry list of senators, the majority of Democratic senators in the chamber from Bernie Sanders to Elizabeth Warren to Jon Tester from Montana, Jeanne Shaheen from New Hampshire, on and on, all found themselves saying fight, fight like hell, some version of that. Chuck Schumer, of course, too.

So they largely didn't react. There was some expressions of oh my gosh, can you believe this is happening? In there, but largely they didn't react.

But Jamie Raskin, the lead prosecutor, was also on the Senate floor. He was taking notes furiously, and of course he also was played on the screen again and again, when he was challenging the electoral results from previous elections. So clearly he is making notes that he is going to add into his closing arguments.

But, Anderson, there definitely is a sense from Republicans that they believe that the president's lawyers are doing a much better job. Actually, Senator Lisa Murkowski of Alaska, who's likely expected to vote to convict, she even praised the work of the senators, coming out in the break and telling reporters that she thought they were doing a very good job.

[14:15:10] I talked to a Republican senator before the proceeding, and he said in fact they were worried about the type of defense that the president's lawyers would mount. So without question, this gives Republicans who are already likely to not vote to convict, some bit of comfort here.

But, Anderson, in terms of context, the context for all of these senators' words were entirely eliminated, and playing long stretches of the president's speeches simply was not necessary, likely, to most of these senators. They have lived the last four years of the Trump presidency, through two presidential campaigns as well, so there literally is a sound bite for everything he has said.

They also lived the attack on January 6th. It was not just a few people, as it was described. So that is likely to sort of agitate some of the Democrats in the room.

But so far at least, paying much more attention than they were. And they're also expecting to wrap up at least this portion this afternoon, and expect the question portion this evening. One Republican senator told me, we're planning to have dinner here in the Capitol tonight. They still believe they can be out of town, this could be all over some 24 hours from now -- Anderson.

COOPER: All right, Jeff Zeleny, thanks very much.

We're going to take a quick break, we are waiting for the trial to resume. We'll be right back.

(COMMERCIAL BREAK)

[14:20:46]

TAPPER: Welcome back to CNN's coverage of the second impeachment trial of Donald Trump. I want to go to Capitol Hill and bring in CNN's Manu Raju.

Manu, you're getting some opportunities to talk to the jurors, as they were, the senators during this break. What are they telling you?

MANU RAJU, CNN CHIEF CONGRESSIONAL CORRESPONDENT: Pretty partisan reaction. Republicans, praising what they heard, Democrats panning what they heard. Republicans, including Senator Ron Johnson of Wisconsin, saying the Trump team blew it out of the water. Senator Barrasso, John Barrasso, another member of Republican leadership, said the Trump team is better prepared this time around.

And that was also echoed by Lisa Murkowski, who's the Alaska Republican senator, someone who's seen as a likely vote to convict Donald Trump, said that the Trump team is doing a better job than last time.

The Democrats, on the other hand, are criticizing this sharply because they said the video montages that have been played repeatedly through the course of today's session, just are complete false equivalents. Because the Trump team is trying to contend that Democrats have said fight, fight, fight, and that's similar to what Donald Trump in that -- before that January 6th rally that led to the violent mob that came here to Capitol Hill.

Just a few, sampling of some of these remarks. Senator Martin Heinrich called it a completely false equivalence. He said, "I don't remember any violent mobs after any of those comments" -- that's what he said to me. Also, Senator Chris Coons of Delaware said, "Show me any time that the result was our supporters pulled someone out of the crowd, beat the living crap out of them, and then we said that's great, good for you and you're a patriot."

Senator Tim Kaine, who was on the ticket as the vice presidential candidate back in 2016, said that this was a completely bogus argument. And he said, "Donald Trump was told if he didn't stop, people would be killed. And what happened? People were killed."

So you're seeing how members are reacting. How will it impact the votes? Probably not by much. But, Jake, we do expect these arguments on the Trump side to finish up pretty quickly this afternoon, and potentially moving quickly into the question-and-answer session. The senators will answer (sic) questions, each team will respond.

We don't expect that session to go particularly long, and then we could be moving quickly to a vote to acquit or convict Donald Trump as soon as tomorrow -- Jake.

TAPPER: All right, Manu Raju on Capitol Hill, thanks so much.

And you know, Abby, when I said that the montage that the Trump lawyers put together was like a Sean Hannity mixtape? I didn't mean that the Republican senators don't like Sean Hannity mixtapes, they like them.

PHILLIP: And in fact, it may be exactly what they want --

TAPPER: Right.

PHILLIP: -- I mean, I do think that so many of the arguments -- in fact, the false equivalency may be exactly what some Republican senators are looking for. They're looking for something to hang their hat on --

TAPPER: Exactly.

PHILLIP: -- and the main thing is going to be to say that Trump's words were effectively no different from the words utilized by any other person. That's going to be, I think, the predominant argument that's being used here.

And then a corollary to that is the constitutionality argument. I put that in scare quotes because what it really -- what they're really saying today, and emphasizing, is the idea that the proceeding is unconstitutional because Trump has a First Amendment right to say effectively whatever he wants. And that because of that, he can't be impeached because he was using his free speech rights.

I think Republicans are going to hang onto that and use that as much as they can over the next -- (CROSSTALK)

BASH: Yes. I mean, you could chip away at that without a law degree, but that isn't the point. The point is, is that of all of the arguments we heard this morning, that was the most focused and dedicated to the law. You can argue for and against it, but it was the one focused on the law as opposed to, you know, mixtape.

I think they actually took from some things that Sean Hannity and others at Fox have made, and just --

TAPPER: Sure.

BASH: -- added to it on the floor. But --

TAPPER: And just -- just to underline that point, have Democrats said stupid things --

BASH: Of course.

TAPPER: -- and used bellicose language that they should not have said? I mean, I think the use of the word "fight" is a little -- it's a little overwrought to criticize specifically "fight" without the idea of context. But sure, Leader Schumer's comments in front of the Supreme Court about reaping what you sow or reaping the whirlwind? That wasn't smart, that was dumb.

BASH: No, that was dumb.

TAPPER: Was it followed by physical attacks on Brett Kavanaugh or Neil Gorsuch? No.

[14:25:00]

BASH: No, it wasn't. And by the way, I don't remember the last time Madonna or Johnny Depp ran for office.

TAPPER: Impeach.

BASH: And those were really stupid things to say, no matter how you feel about their music or their acting, but it's completely irrelevant to what we're talking about now.

The one other thing I will say on just overall on the reaction that I'm getting, just on texts from Republicans, from some conservative lawyers, is that they did better than they did the first day. The bar was pretty low, so --

(LAUGHTER)

TAPPER: I don't know what they'd have to do to have it be worse.

BASH: Drool.

TAPPER: Yes, exactly, like --

PHILLIP: Partly because they kept repeating the same video over and over --

BASH: Yes.

PHILLIP: -- presumptively to use up more of their time. But I mean, I don't know how many times you can play, you know, a montage of people using the word "fight" in all kinds of contexts that are completely irrelevant to the argument at hand.

TAPPER: The idea -- I don't know if, in the control room, we have that Ted Cruz clip, the montage that we ran earlier, let me know when it's ready.

But the idea that then-Senator, now-Vice President Harris making a joke about getting into a deadly fight on an elevator with, you know, X, Y, or Z? That that is the same thing as a campaign that began in May of 2020 by Donald Trump, who claimed that the election was stolen from him. Not to mention just the culture of violence that Donald Trump has been pushing for since 2015, since he entered the race? The idea that that's the same is ridiculous. And Republican senators know that.

We ran this earlier, but I think it's worth running again. Here is Ted Cruz, Senator Ted Cruz, one of Trump's strongest supporters right now in the Senate, actually advising the Trump lawyers as has been reported -- even though he's supposedly a juror as well. Here he is back in 2016, when he was facing Donald Trump and was against Donald Trump. Here was his view of the culture of violence that Donald Trump would often promote.

(BEGIN VIDEO CLIP)

SEN. TED CRUZ (R-TX): When the candidate urges supporters to engage in physical violence, to punch people in the face? The predictable consequence of that is that it escalates.

CRUZ (via telephone): Donald Trump now has a consistent pattern of inciting violence, of Donald and his henchmen pushing for violence. No politician has the right to threaten violence against American citizens. Even lefty numbskulls are American citizens and you don't threaten violence against them.

(END VIDEO CLIP)

TAPPER: So in other words, the point I'm making is, yes, Democrats have said stupid things, but the idea that Elizabeth Warren, speaking to bunch of PBS tote bag-holding Massachusetts residents, talking about how she's going to fight for health care, is the same thing as what Donald Trump did? They -- Ted Cruz and others -- they know that's false.

Now, you can think what you think about impeachment, whatever. But the idea that it's equivalent is just gaslighting of the highest order.

BASH: It is. And you know, fortunately or unfortunately -- maybe take that out. Just the facts are that what happened after Ted Cruz was making that prediction ,was that Donald Trump won the election, he became president.

So the -- you know, he was aggrieved because he didn't think people took him seriously, he didn't think that people thought he was legitimate because of Russia and everything else. But it didn't escalate -- because he won.

This time around, it escalated because he didn't win and he couldn't handle it, and that is the big difference.

PHILLIP: Yes. I mean, it bears reminding that they, the Trump lawyers, started their presentation by playing a montage video of Trump talking about law and order and, you know, loving police and so on and so forth, the implication being that he has never supported or endorsed political violence before, when, as you point out, Ted Cruz knows that's not true.

But we also had a full day, practically, yesterday, of video evidence of Trump doing exactly that. So you know, on its face, that argument is not true no matter what he says about law and order. He has repeatedly, at various times, either looked the other way or explicitly endorsed violence by his supporters against their political opponents. That's just the facts of the matter as they are out there for the last five years at this point.

BASH: And one thing that we haven't heard them defend -- and they're not done yet -- we haven't heard them defend the big lie that led to all this. We haven't heard them say what, in its heart of hearts, Donald Trump wants them to say so desperately, which is the election was rigged and it was stolen from him, and all of the things that he said that caused the riot in the first place.

Bernie Sanders has already indicated to CNN that he is -- that's one of the questions he wants to ask those lawyers, so we'll see what they do when the substance of this comes up.

[14:30:03]

TAPPER: We're going to sneak in another break, the impeachment trial should resume at any moment. Stay with us.