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Trump Defense Team Presents Case to Acquit Trump. Aired 2:30-3p ET

Aired February 12, 2021 - 14:30   ET



DANA BASH, CNN CHIEF POLITICAL CORRESPONDENT: 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.

JAKE TAPPER, CNN HOST: We're going to sneak in another break. The impeachment trial should resume at any minute. Stay with us.


ANDERSON COOPER, CNN HOST: The presentation by the former president's attorneys is about to start again. Let's listen in.


SEN. PATRICK LEAHY (D-VT): Who seeks recognition?

Mr. Castor is recognized.


LEAHY: Mr. Castor?

CASTOR: -- members of the Senate, good afternoon.

It has been my great privilege 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 in leading such a talented group is deciding who's responsible for what and the strategy and the order in which we will present our evidence.

And you have heard from Mr. Van Der Veen and Mr. Schoen on the importance of the First Amendment and the importance of due process of law.

And 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 -- and believe me it was a very difficult decision to make, because I thought that the other arguments presented by Mr. Schoen and Mr. Van Der Veen were outstandingly researched, thoroughly vetted, and wonderfully and articulately presented by them.

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 engage in incitement of -- they continued to say - insurrection?

Clearly, there was no insurrection. Insurrection is a term of art defined in the law and it involves taking over a country, a shadow government, taking the TV stations over, and having some plan on what you're going to do when you finally take power. Clearly, this is not that.

What our colleagues here across the aisle meant is incitement to violence, to riot. So the word "incitement" is the critical case, and the critical issue in the case.

Now, the first time that you heard from us, I told you that you would never hear from our side that what happened on January 6th 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 those criminals that occurred in this very chamber, this very building.

There was a reason why we started our presentation back on Tuesday in that way. Because I did not want the Senators to consider that there was any challenge to that particular fact.

And yet, 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 capitol was.

They spent no time at all in connecting, legally, the attack on the capitol to the 45th president of the United States, which is "the" only question that needs to be answered, is: Was Donald Trump responsible for inciting the violence that came to this building on January 6th?

Now, by any measure, President Trump is the most pro-police, anti-mob- rule president this country has ever seen. His real supporters know this.


He made it clear throughout his presidency. He made it clear during the violence this past summer. He made it clear on January 6th.

But politics changes things. Politics has created and interposed an element that should not be here. It has interposed the element of hatred. And the political world changes when hatred becomes part of the dynamic.

As we wrote in our answer to the original charging document -- and I hope that this is a phrase that lives on long after we are all departed, and then I hope someday this becomes the mantra by which all of us operate who work for the benefit of the public -- that political hatred has no place in the American justice system, and most certainly, no place in the Congress of the United States.

To illustrate the contrast that I am speaking of, we have a video.


DONALD TRUMP, FORMER PRESIDENT OF THE UNITED STATES: I am your president of law and order and an ally of all peaceful protesters.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: The vast majority of the protestors are peaceful.


TRUMP: Republicans stand for law and order and we stand for justice.

REP. NANCY PELOSI (D-CA): I just don't even know why there aren't uprisings all over the country. Maybe there will be.

TRUMP: My administration will always stand against violence, mayhem and disorder.

REP. AYANNA PRESSLEY (D-MA): There needs to be unrest in the streets for as long as there's uninterest in our lives.

TRUMP: I stand with the heroes of law and order.

REP. MAXINE WATERS (D-CA): And you push back on them. And you tell them that they're not welcome anymore and anywhere.

TRUMP: We will never defund our police. Together, we will ensure that America is a nation of law and order.

BIDEN: If I were in high school, I'd take him behind the gym and beat the hell out of him.

UNIDENTIFIED CONGRESSMAN: I think we need to go back and punch him in the face.

SEN. CORY BOOKER (D-NJ): I feel like punching him.

TRUMP: We just want law and order. Everybody wants that.

SEN. CHUCK SCHUMER (D-NY): I want to tell you, (INAUDIBLE), I want to tell you, Kavanaugh, you have released the whirlwind and you will pay the price!

TRUMP: We want law and order. We have to have law and order.

TAPPER: Show me where it says that protests are supposed to be polite and peaceful.

TRUMP: We believe in safe speech, secure communities, and we believe in law and order.


CASTOR: Is there truly anyone in this chamber who disagrees with the words as spoken by President Trump on that video? Surely not. Surely not.

This contrast and in this context, I ask you to keep that in mind.

My colleagues here, actually, my colleague here, Mr. Raskin, hopes that you don't.

They have used selected edited and manipulated visuals to paint a picture far different from this truth.

Make no mistake -- and I will repeat it now and anytime I'm ever asked -- January 6th was a terrible day for our country. The attack on this building shocked us all.

President Trump did not incite or cause the horrific violence that occurred on January 6th, 2021. They know that.

We know the president did not incite the riot, because of his plain words that day, as Mr. Van Der Veen elucidated on a few minutes 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 ability to analyze evidence, apply it to statutes, use timelines, and figure out what happened based on circumstantial evidence and direct evidence and testimony and forensic analysis.

I can't recall any of the House managers who got up that didn't make some reference to prosecutorial bona fides.


Well, I've 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 every single day that he served in the White House.

But if we're going to apply the facts to the statute, it has to be done systematically. 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 law.

Again, Mr. Van Der Veen gave you an overview of the Brandenburg case and some of the related cases.

You notice that when Mr. Van Der Veen listed the elements that he took verbatim or close to verbatim right out of Brandenburg, they bore no reference whatsoever to the elements that were flashed up by the Democrats managers the other day repeatedly.

He actually used the Supreme Court's 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.

Under that test, the Brandenburg v. Ohio test, there are three elements that must be proven, beyond a reasonable doubt, by a preponderance of the evidence, whatever the Senate considers, I suggest, beyond a reasonable doubt.

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 peaceful protests.

Second, the speaker must intend that his speech will result in the use of violence or a lawless action.

And, again, as Mr. Van Der Veen pointed out, the president clearly deplored rioters and political violence, and did so throughout his term as president, and never hesitated to express his admiration for the men and women that protect this country.

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 likely result of the speech, the likely result of the speech.

Well, that argument is completely eviscerated by the fact that the violence was pre-planned as confirmed by the FBI, Department of Justice, and even the House managers. Not the result of the speech at all.

Several of my colleagues at 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. I have run grand juries. In those proceedings, you call witnesses, you hear evidence, you make transcripts, you take affidavits, your develop physical evidence, you hear reports from police officers, you hear forensic analysis from scientists.

In fact, you invite the target of the grand jury to come in and 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 happened.

So the suggestion that what happened in the House was anything at all like a grand jury investigating a case and 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, we need to talk about it again. The president asked that the attendees at his rally peacefully make their voices heard.



TRUMP: I know that everyone here will soon be marching over to the capitol building --


TRUMP: -- to peacefully and patriotically make your voices heard.


CASTOR: 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." And the House managers took from that, go down to the capitol and riot.

So you are supposed to put yourselves in the heads of the people who hear "peacefully and patriotically make your voices heard" and conclude that those words do not mean what the president said.

More than that, the president criticized the destruction wrought by left-wing anarchists and rioters. He told his supporters that they build. They don't destroy.


TRUMP: If this happened to the Democrats, they'd be hell all over the country going on.


TRUMP: There would be hell all over the country.

But just remember this. You're stronger. You're smarter. You've got more going than anybody. And they try and demean everybody having to do with us.

And you're the real people. You're the people that built this nation. You're not the people that tore down our nation.


CASTOR: Is it possible, listening to those words in the proper cadence, without them being edited or the sound changed so that they are indistinguishable or sounds as though the crowd is right there, but listening to it as you have here unedited 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.

Now the House managers said the president told the crowd, quote, "You have to get out your people to fight." The House managers' claim is that the president of the United States was telling the audience to get -- to get each other to physically fight.

But that is not what the president said. The people who should fight, he said, were members of Congress.

If they don't fight -- what the president said, is what should -- what should the rally attendees do? If members of Congress wouldn't fight for the principles they held dear, what it was that the president specific 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. That is one truism I think I can say with some certainty.

But that's the way we operate in this country. When the people of a state want to change their representatives and their Senators, they use the electoral process.

President Trump told his listeners that if their members of Congress won't fight for their views, then go back home and find others that will.

That's what President Trump said. The people should -- who should fight were the members of Congress.


REP. JOE NEGUSE (D-CO), IMPEACHMENT MANAGER: "You have to get your people to fight," he told them.

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


CASTOR: 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're under oath here but when I walked into this room I sure as heck felt like I was under oath and that I was speaking not only to the Senate of the United States but before the entire world and with God watching.


And a House manager got up here and told you that the president of the United States, on January the 6th, 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 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. That's the American way.

The first way that the House managers presented and wanted you to conclude, that's the criminal way. But what the president said was the American way.

Again, House managers manipulated President Trump's words.

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, put up evidence that was not with the foundation of correctness and admissibility we expect.

I can't tell you that I picked up one. I don't think Mr. Van Der Veen or Mr. Schoen or any of the other ones that work with us can tell you that. But what I can tell you is that there were an awful lot of times.

And I know at least some of you were judges in previous lives, and that -- and if one of the lawyers was able to create the impression that one side intentionally presented misleading or false evidence, that judge would give an instruction called "falsus in uno, falsus in omnibus," false in one thing, false in everything.

In other words, if they are trying to fool you about one thing, not only might they be trying to fool you in something else, but under that maxim of the law, you may conclude they are trying to fool you in everything else.

President Trump was immediate in his calls for calm and respect for law enforcement.

The House managers emphasized President Trump's tweet in the 6:00 p.m. hour, where he told crowds to, quote, "go home in love and peace and remember this day."

What is it that they left out? Well, the House starts their recitation of what President Trump said, as far as the aftermath of when the capitol was breached, that's roughly 6:00 p.m.

What they didn't tell you and didn't tell you -- and what you probably don't know because I think I'm the first one to say it in this forum -- is, at 2:38, President Trump urged protesters at the U.S. capitol to, quote, "stay peaceful. Please support our capitol police and law enforcement. They are truly on the side of our country. Stay peaceful."

And before we run the graphic, I just want to point out to you President Trump's speech ended at 1:11 p.m.

So at 2:38 p.m., by the time word reaches the president that there's a problem down here, he's out urging people to support the police, stay peaceful, support our capitol police and law enforcement. "They are on the side of the country. Stay peaceful."

At 3:13 p.m., President Trump urged protests at the U.S. capitol to: "Remain peaceful. No violence. Remember, we are the party of law and order. Respect the law and our great men and women in blue" -- 3:13 p.m.


President Trump's words couldn't have incited the riot at the capitol. The day's events make this clear.