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CNN LIVE EVENT/SPECIAL

Senators Ask Question in Trump Impeachment Trial. Aired 5-6p ET

Aired February 12, 2021 - 17:00   ET

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


[17:00:00]

MICHAEL VAN DER VEEN, FORMER PRESIDENT TRUMP'S DEFENSE LAWYER: -- where I come from when you get caught doctoring the evidence, your case is over. And that's what happened. They got caught doctoring the evidence, and this case should be over.

SEN. PATRICK LEAHY (D-VT): Senator from Vermont.

Senator from Vermont, Senator Sanders has a question for both the counsel for the former president and House manager. The clerk will read it. And following our procedure, the House managers will go first.

UNIDENTIFIED MALE: The House prosecutors have stated over and over again that President Trump was perpetrating a big lie when he repeatedly claimed that the election was stolen from him, and that he actually won the election by a landslide. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election?

LEAHY: The House managers have up to two and a half minutes.

STACEY PLASKETT (D), DELEGATE TO U.S. HOUSE OF REPRESENTATIVES: As we all know, President Trump did lose the election by 7 million votes, 306 electoral votes. By the time of the January 6 attack, the courts, the Justice Department, all 50 states across the country have done agreed that the votes were counted. The people had spoken. And it was time for the peaceful transfer of power as our Constitution and the rule of law demands.

Sixty-one courts, 61 courts the President went to that's fine, appropriate. He lost. He lost. He lost the election. He lost the court case.

As Leader McConnell recognized the day after the electors certified the votes on December 14, he said, "Many millions of us had hoped that the presidential election would yield a different result. But our system of government has processes to determine who will be sworn in on January 20. The Electoral College has spoken."

Patriotism. Sometimes there is a reason to dispute an election. Sometimes the count is close, sometimes we ask for a recount, go to courts. All of that's appropriate.

I lost my first election. I stayed in bed for three days. We do what we need to do. And we move on.

This was not that, because when all of these people confirmed that Donald Trump had loss when the courts his, his department of justice, state officials, Congress, his vice president were ready to commit to the peaceful transfer of power, the peaceful transfer of power, Donald Trump was not ready. And we are all here because he was not ready.

Day after day, he told his supporters false outlandish claims of why this election was rigged. Now, let's be clear. President Trump had absolutely no support of these claims. But wasn't the point of what he was doing. He did it to make his supporters frustrated, to make them angry.

LEAHY: You're up.

[17:05:00]

Time is expired.

And counsel for the former president, you're recognized for two and a half minutes.

UNIDENTIFIED MALE: (INAUDIBLE)

LEAHY: Of course, the clerk will read the question again.

UNIDENTIFIED MALE: The House prosecutors have stated over and over again that President Trump was perpetrating a big lie when he repeatedly claimed that the election was stolen from him, and that he actually won the election by a landslide. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election?

LEAHY: The counsel for the former president have two and a half minutes.

VAN DER VEEN: My judgment? Who asked that?

UNIDENTIFIED MALE: I did.

VAN DER VEEN: My judgments irrelevant in this proceeding. It absolutely is.

What supposed to happen here is the article of impeachment is --

LEAHY: The Senate will be an order. The senators under the rules cannot challenge the content of the response. The counsel will continue.

VAN DER VEEN: May I have the question right again, please.

UNIDENTIFIED MALE: The House prosecutors have stated over and over again, that President Trump was perpetrating a big lie when he repeatedly claimed that the election was stolen from him, and that he actually won the election by a landslide. Are the prosecutors right when they claim that Trump was telling a big lie? Or in your judgment, did Trump actually win the election?

VAN DER VEEN: In my judgment, it's irrelevant to the question before this body. What's relevant in this impeachment article is, were Mr. Trump's words insightful to the point of violence and riot? That's the charge. That's the question.

And the answer is no. He did not have speech that was insightful to violence, or riot.

Now, what's important to understand here is the House managers have completely, from the beginning of this case to right now, done everything except answer that question. The question they brought before you, the question they want my client to be punished by. That's the questions that should be getting asked.

And the answer is he advocated for peaceful, patriotic protests. They're his words. You've -- the House manager have showed zero, zero evidence that his words did anything else.

Remember, all of the evidences, this was premeditated. The attack on the Capitol was pre planned. It didn't have anything to do with Mr. Trump in any way. What he said on that day on January 6 at that ellipse. And that's the issue before this Senate.

Now on the issue of contesting elections and the results, the Democrats have a long, long history of just doing that. I hope everybody was able to see the video earlier today. Over and over again, it's been contested.

When Mr. Trump was elected president, we were told that it was --

LEAHY: Counsel's two and a half minutes has expired.

The Senator from Wisconsin.

I'm sorry, I couldn't see who is --

UNIDENTIFIED MALE: Understand. I send a question to the desk for both parties.

LEAHY: Senator from Wisconsin sent a question for both counsel for the former president and the House managers. Clerk will read it. And the counsel for the former president will have the first two and a half minutes.

[17:10:17]

UNIDENTIFIED MALE: The House managers assert that the January 6 attack was predictable, and it was foreseeable. If so, why did it appear that law enforcement at the Capitol were caught off guard and unable to prevent the breach? Why did the House surgeon at arms reportedly turned down a request to activate the National Guard stating that he was not comfortable with the optics?

LEAHY: Counsel for former president is recognized.

VAN DER VEEN: Can you the question again, please.

LEAHY: Clerk will read the question again.

UNIDENTIFIED MALE: The House managers assert that the January 6 attack was predictable, and it was foreseeable. If so, why did it appear that law enforcement at the Capitol were caught off guard and unable to prevent the breach? Why did the House Sergeant at Arms reportedly turned down a request to activate the National Guard stating that he was not comfortable with the optics?

VAN DER VEEN: Holy cow. That is a really good question. And had the House managers done their investigation? Maybe somebody would have an answer to that. But they didn't.

They did zero investigation. They did nothing. They looked into nothing.

They read newspaper articles, they talked to their friends who know a T.V. reporter or something or something or another. But Gemini crickets there is no due process in this proceeding at all.

And that question highlights the problem when you have no due process. You have no clear-cut answers. But we do know that there was, I think a certain level of foreseeability. It looks like from the information they were presenting. Some law enforcement knew that something could be happen. I was -- in my presentation, we knew that the mayor two days before, before had been offered to have federal troops or National Guard deployed, beef up security here in Capitol Police. It was offered.

So somebody had to have an inkling into something. And my question is, who ignored it? And why?

If an investigation were done, we would know the answer to that, too. Thank you.

LEAHY: The House managers have two and a half minutes.

PLASKETT: First, if defense counsel has exculpatory evidence, you're welcome to give it to us. We would love to see it. You've had an opportunity to give us evidence that would exculpate the president, haven't seen it yet.

Everyone in the defense counsel wants to blame everyone else, except the person who was most responsible for what happened on January 6, and that's President Trump, Donald Trump. And he is the person who foresee this the most because he had the reports, he had access to the information, he as well had, we all know how he is an avid cable news watcher. He knew what was going to happen. He cultivated these individuals. These are the undisputed facts.

The National Guard was not deployed until over two hours after the attack. I heard reference to Mayor Bowser in defense's presentation. Mayor Bowser does not have authority over the Capitol or federal buildings. She could not deploy National Guards to the Capitol. That is outside of the jurisdiction of the mayor of the District of Columbia.

[7:15:00]

At no point in that entire day, did the President of the United States, our commander in chief, tell anyone, law enforcement struggling for their lives, insurgents who felt empowered by the sheer quantity of them, any of us in this building, or the American people that he was sending help? He did not defend the Capitol.

The President of the United States did not defend the Capitol of this country. It's an indefensible.

SEN. JEFF MERKLEY (D-OR): Mr. President.

LEAHY: Senator Merkley.

MERKLEY: Mr. President, I send a question to the desk.

LEAHY: Senator Merkley had submit a question for the House managers. The clerk will read the question.

UNIDENTIFIED MALE: If a president spins a big lie to anger Americans, and stokes the fury by repeating the lie at event after event, and invites violent groups to D.C. on the day and hour necessary to interrupt the electoral college count, and does nothing to stop those groups from advancing on the Capitol and fails to summon the National Guard to protect the Capitol and then express his pleasure and delight that the Capitol was under attack. Is the President innocent of inciting an insurrection? Because in a speech, he says, be peaceful?

LEAHY: The House managers have five minutes.

REP. JOAQUIN CASTRO (D-TX): You all ask a very important question, which is given everything that the president did leading up to the election after the election, and leading up to January 6, all of the incitement of his supporters, whom he convinced with a big lie over and over, that the election had been stolen from them and from him. And then once the mob had stormed the Capitol, the Vice President was in danger, the Speaker was in danger, the members of the House and the Senate and all the staff here, the janitorial staff, the cafeteria workers, everybody, and all of the hot rhetoric that he spoke with, and then simply a few times said stay peaceful.

Remember, he said stay peaceful, when they'd already gotten violent, when they'd already brought weapons, when they'd already hurt people. When he never said was stop the attack, leave the Capitol, leave immediately.

And let me be clear, the President's message in that January 6 speech was incendiary. So in the entire speech, which was roughly 1,100 words, he used the word peaceful once. And using the word peaceful was the only suggestion of nonviolence. President Trump used the word fight or fighting 20 times.

Now again, consider the context. He had been telling them a big lie over and over, getting them amped up, getting angry because an election had been stolen from them. There's 1000s of people in front of him. Some of them are carrying weapons and arms. They're angry. He's telling them to fight.

And President Trump's words in that speech, just like the mobs actions, were carefully chosen. His words incited their actions.

[17:20:00]

And how do we know this? For months the President had told his supporters his big lie that the election was rigged. And he used the lie to urge his supporters not to concede and to stop the steal.

REP. JAMIE RASKIN (D-MD): You robbed a bank, and on the way out the door you yell, respect private property, that's not a defense to robbing the bank.

SEN. TED CRUZ (D-TX): Mr. President.

LEAHY: The Senator from Texas.

CRUZ: Mr. President, I sent a question to the desk directed at both sides.

LEAHY: Senator from Texas has a question for both sides. The clerk will read it. And the House managers will go first for two and a half minutes.

UNIDENTIFIED MALE: Out of their 16 hours, the House managers devoted all of 15 minutes to articulating a newly created legal standard for incitement. One, was violence foreseeable. Two, did he encourage violence? Three, did he do so willfully?

Is this new standard derived from the Criminal Code or any Supreme Court case? While violent riots were raging, Kamala Harris said on national T.V., they're not going to let up and they should not. And she also raised money to bail out violent rioters.

Using the manager's proposed standard, is there any coherent way for Donald Trump's words to be incitement, and Kamala Harris's words, not to be incitement?

RASKIN: Thank you, Mr. President, Senators.

I'm not familiar with the statement that is being referred to with respect to the Vice President, but I find it absolutely unimaginable that Vice President Harris would ever incite violence or encourage or promote violence.

Obviously, it's completely irrelevant to the proceeding at hand, and I will allow her to defend herself.

The president's lawyers are pointing out that we've never had any situation like this before in the history of the United States. And it's true, there's never been a president who has encouraged a violent insurrection against our own government. So, we really have nothing to compare it to. So, what we do in this trial will establish a standard going forward for all time.

Now, there are two theories that have been put before you. And I think we've got to get past all of the Picayune little critiques that have been offered today about this or that. Let's focus on what's really at stake here.

The president's lawyers' say, echoing the president, his conduct was totally appropriate. In other words, he would do it again. Exactly what he did is the new standard for what's allowable for him or any other president who gets into office.

Our point is that his incitement, so overwhelms any possible legal standard we have that we've got the opportunity now, to declare that presidential incitement to violent insurrection against the Capitol in the Congress is completely forbidden to the President of United States, under the impeachment clauses. So we set forth for you the elements of encouragement of violence, and we saw it overwhelmingly.

We know that he picked the date of that rally. In fact, there was another group that is going to rally another date and he got it moved to January 1, he's synchronized exactly with the time that we would be enjoying session.

And as Representative Cheney said, he summoned that mob, he assembled that mob, he incited that mob, he lit the match. Come on, get real. We know that this is what happened.

And the second thing is the foreseeability of it, was it foreseeable? Remember Lansing, Michigan, and everything we showed you, they didn't mention that of course.

[17:25:00]

Remember the MAGA two march, the MAGA two rally, they didn't mention that. Violence all over the rallies. The president cheering it on, delighting in it, reveling in it, exalting in it.

Come on, how gullible do you think we are? We saw this happen. We just spent 11 or 12 hours looking at that.

An intention for --

LEAHY: Manager's time --

RASKIN: Thank you.

LEAHY: -- has expired.

Counsel for the former president has two and a half minutes.

VAN DER VEEN: Senator Cruz, I believe the first part of your question refers to the newly created Raskin doctrine on first amendment. And he just in his answer actually gave you a new one appropriateness. The standard that this body needs to follow for law is Brandenburg v. Ohio. In the test, really, the three part test really comes out of Bible believers versus Wayne County, to be specific.

The speech has to be explicitly or implicitly encouraged the use of violence. In other words, it has to be in the words itself, which is clearly it's not in the words itself, that step one, they don't get past it.

Two, the Speaker intends that his speech will result in use of violence or lawless action. There's no evidence of that. And it's ludicrous to believe that that would be true.

Third, the imminent use of violence or lawless action is likely to result in speech. Also, they fail on all three points of the law as we know it and needs to be applied here.

I don't know why he said he never heard Kamala Harris say about the riots and the people rioting and ruining our businesses and our streets that they're not going to let up. And they should not because we played it three times today.

We gave it to you in audio, I read it to you, and you got it in video. That's what she said. But it's protected speech. Her speech is protected also, Senator, that's the point.

You all have protections as elected officials. The highest protections under the First Amendment. And that first amendment applies here in this chamber, to this proceeding.

And that's what you need to keep focused on. You need to keep focused on what is the law and how do we apply it to this set of facts. It's your duty. You get -- you can't get caught up in all of the rhetoric and the facts that are irrelevant.

You need to keep focused on what is the issue before you decided based on the law, Brandenburg and Bible believers and apply it to the facts. And that requires you to look at the words. And there were no words of incitement of any kind.

LEAHY: The counsel's time is expired.

VAN DER VEEN: Thank you.

SE. PATT MURRAY (D-WA): Mr. President.

LEAHY: Senator from Washington.

MURRAY: President, I send a question to the desk.

LEAHY: The senator from Washington, Senator Murray has a question for the House managers. The clerk will read the question.

UNIDENTIFIED MALE: At 6:01 p.m. Eastern Time on January 6, President Trump tweeted these are the things that happen when a sacred landslide election victory is so unceremoniously and viciously stripped away from great patriots who have been badly and unfairly treated for so long. Adding for rioters to go home with love and in peace. What is the relevance of this tweet to President Trump's guilt?

LEAHY: The House managers are recognized for up to five minutes

CRUZ: Senators this was a key quote and a key statement by the President that day, that horrific day.

[17:30:01]

Remember, the Capitol had been stormed, had been attacked. People had yelled, hang Mike Pence. People had gone after Speaker Pelosi. People brought baseball bats and other weapons. Many members of Congress in the Senate, in the House were fearful for their own lives.

The President didn't call the National Guard. His own administration didn't list him as somebody that they had spoken with, to activate the guard. And he said, remember this day forever. So, if he was not guilty of inciting this insurrection, if this is not what he wanted, if it wasn't what he desired, by that time, the carnage had been on television for hours. He saw what was going on. Everybody saw what was going on.

If it wasn't what he wanted, why would he have said, remember this day forever? Why commemorate a day like that, an attack on the U.S. Capitol, for God's sake? Why would you do that? Unless you agree that it was something to praise not condemned. Something to hold up and commemorate. No consoling the nation, no reassuring that the government was secure. Not a single word that entire day condemning the attack, or the attackers or the violent insurrection against Congress.

This tweet is important because it shows two key points about Donald Trump's state of mind. First, this was entirely and completely foreseeable. And he foresaw it. And he helped incite it, over many months. He's saying, I told you this was going to happen if you certify the election for anyone else besides me. And you got what you deserved for trying to take it away from me. And we know this because that statement was entirely consistent with everything he said, leading up to the attack.

Second, this shows that Donald Trump intended and reveled in this. Senators, he reveled in this. This is he delighted in it. This is what he wanted. Remember this day forever, he said. Not as a day of disgrace as it is to all of us, but it's a day of celebration and commemoration. And if we let it, if we don't hold him accountable and set a strong precedent, possibly a continuation later on.

We will, of course, all of us remember this day, but not in the same way that Donald Trump suggested. We'll remember the bravery of our Capitol and Metro Police forces. We'll remember the officer who lost his life and sadly the others who did as well, and the devastation that was done to this country because of Donald Trump.

SEN. PATRICK LEAHY (D-VT): The Senator from Louisiana.

SEN. BILL CASSIDY (R-LA): Mr. President, I send the question to the desk.

LEAHY: The South Louisiana Mr. Cassidy has a question for both counsel for the former President and counsel for the House. The clerk will read it and counsel for the former President will go first for two and a half minutes. Then the House of Representatives will have two and a half minutes.

UNIDENTIFIED MALE: Senator Tuberville reports that he spoke to President Trump at 2:15 p.m. He told the President that the Vice President had just evacuated. I presume it was understood at this time that rioters had entered the Capitol and threatened the safety of senators and the Vice President.

[17:35:02]

Even after hearing of this at 2:24 p.m., President Trump tweeted that Mike Pence lacked courage. He did not call for law enforcement back up until then. The tweet and lack of response suggests President Trump did not care that Vice President Pence was endangered or that law enforcement was overwhelmed. Does this show that President Trump was tolerant of the intimidation of Vice President Pence?

LEAHY: Done, so that was two and a half minutes.

MICHAEL VAN DER VEEN, FORMER PRESIDENT TRUMP'S DEFENSE LAWYER: Directly no, but I dispute the premise of your facts, I dispute the facts that are laid out in that question. And, unfortunately, we're not going to know the answer to the facts in this proceeding, because the House did nothing to investigate what went on. We're trying to get hearsay from Mr. Tuberville, there was hearsay from Mr. Lee, I think it was two nights ago. And we ended where Mr. Lee was accused of making a statement that he never made. But it was a report from a reporter from a friend of somebody who had some hearsay that they heard the night before at a bar somewhere. I mean, that's really the kind of evidence that the House has brought before us.

And so, I have a problem with the facts in the question, because I have no idea. And nobody from the House has given us any opportunity to have any idea. But Mr. Trump and Mr. Pence have had a very good relationship for a long time. And I'm sure Mr. Trump very much is concerned and was concerned for the safety and wellbeing of Mr. Pence, and everybody else that was over here. Thank you.

LEAHY: Managers and part of the House of Representatives have two and a half minutes.

REP. JAMIE RASKIN (D-MD): Thank you, Mr. President. But, you know, my counsel said before, this has been my worst experience in Washington. And for that, I guess we're sorry, but man, you should have been here on January 6th. So, the counsel for the President keep blaming the House for not having the evidence that's within the sole possession of their client who we invited to come and testify last week.

We sent a letter on February 4th, I sent it directly to President Trump inviting him to come and to explain and fill in the gaps of what we know about what happened there. And they sent back a contemptuous response just a few hours later. I think they've maybe even responded more quickly to my letter than President Trump did, you know, as a commander in chief to the invasion, and the storming of the Capitol of the United States. But in that letter, I said, you know, if you declined this invitation, we reserve all rights, including the right to establish a trial, that your refusal to testify supports a strong adverse inference.

What's that? Well, Justice Scalia was the great champion of it. If you don't testify in a criminal case, it can't be used against you. Everybody knows that, that's the Fifth Amendment privilege against self-incrimination. But if it's a civil case, and you plead the fifth, or you don't show up, then, according to Justice Scalia and the rest of the Supreme Court, you can interpret every disputed facts against the defendant. That is totally available to us.

So, for example, if we say the President was missing in action for several hours, and he was derelict in his duty and he deserted his duty as commander in chief, and we say that as insider and chief, he didn't call off logs, and they say, oh, no, he was really doing whatever he can. If you're puzzled about that, you can resolve that dispute, factual dispute against the defendant who refuses to come to a civil proceeding. He will not spend one day in jail if you convict him. This is not a criminal proceeding, this is about preserving the Republic, dear Senate.

That's what this is about, setting standards of conduct for the President of the United States so this never happens to us again. So rather than yelling at us and screaming about how we didn't have time to get all of the facts about what your client did, bring your client up here and have him testify under oath about why he was sending out tweets denouncing the Vice President of the United States while the Vice President was being hunted down by a mob that wanted to hang him and was chanting in this building, hang Mike Pence, hang Mike Pence. Traitor, traitor, traitor.

LEAHY: Time of the managers are up. Next question.

UNIDENTIFIED MALE: Mr. President.

LEAHY: The Senator from West Virginia.

SEN. JOE MANCHIN (D-WV): Mr. President, I sent the question to the desk, directed to the House managers.

[17:40:20]

LEAHY: Senator from West Virginia has a question for the House managers, the clerk will report.

UNIDENTIFIED MALE: Would the President be made aware of the FBI and intelligence information of a possible attack? And would the President be responsible for not preparing to protect the Capitol and all elected officials of government with National Guard and law enforcement, as he did when he appeared in front of the St. John's Episcopal Church? PLASKETT: It's the responsibility of the President to know. President of the United States, our commander in chief, its daily briefings on what is happening in the country, that he has a duty to protect. Additionally, the President would have known just like the rest of us don't, all of the reports that were out there and publicly available. How many of you receive calls saying to be careful on January 6, to be careful that day?

I'm not -- I'm seeing reports, it doesn't seem safe. How much more of the President of the United States? Donald Trump is our commander in chief absolutely had a duty and a sworn oath to preserve, protect and defend us, and to do the same for the officers under his command. And he was not just our commander in chief, he incited the attack. The insurgents were following his commands, as we saw when we read aloud his tweet, attacking the Vice President.

And with regard to the Vice President, I'm sure they did have a good relationship. But we all know what can happen to one who has a good relationship with the President, when you decide to do something that he doesn't like. I'm sure some of you have experienced that. When he turns against you, after you don't follow his command.

You heard from my colleagues that when planning this attack, the insurgents predicted that Donald Trump would command the National Guard to help them. Well, he didn't do much better. He may not have commanded the guard to help them, but it took way, way too long for him to command the guard to help us.

This is all connected. We're talking about free speech. This was a pattern and practice of months of activity. That is the incitement. That is the incitement. The activity he was engaged in four months before January 6, not just the speech on January 6. All of it in its totality, is a dereliction of duty of the President of the United States against the people who elected him, all of the people of this country.

LEAHY: The Senator from Alaska.

SEN. DAN SULLIVAN (R-AK): Mr. President, I send a question to that desk for the former President's counsel.

LEAHY: Senator from Alaska, Senator Sullivan has a question for the House counsel and the clerk will report the question.

SULLIVAN: Mr. President.

LEAHY: For the former President's counsel, sorry about that.

SULLIVAN: Thank you, Mr. President.

UNIDENTIFIED MALE: The House manager said yesterday that due process is discretionary. Meaning the House is not required to provide and indeed did not provide in this snap impeachment any constitutional protections to a defended in the House impeachment proceedings.

[17:45:06] What are the implications for our constitutional order of this new House precedent, combined with the Senate's power to disqualify from public office, a private citizen in an impeachment trial?

LEAHY: Counsel has five minutes.

VAN DER VEEN: That's a complicated question. Could I have that read again, please?

UNIDENTIFIED MALE: The House managers said yesterday that due process is discretionary. Meaning the House is not required to provide and indeed did not provide in this snap impeachment, any constitutional protections to a defendant in House impeachment proceedings. What are the implications for our constitutional order of this new House precedent, combined with the Senate's power to disqualify from public office, a private citizen in an impeachment trial?

VAN DER VEEN: Well, first of all, due process is never discretionary. Good lord. The Constitution requires that an accused have the right to due process because the power that our prosecutor has to take somebody's liberty when they're prosecuting them, is the ultimate thing that we try to save in this case just now when the last two hours we've had prosecutorial misconduct. What they just tried to do was say that it's our burden to bring them evidence to prove their case. And it's not, it's not our burden to bring any evidence forward at all.

What's the danger? Well, the danger is pretty obvious. If a majority party doesn't like somebody in the minority party, and they're afraid they may lose the election, or if it's somebody in the majority party, and there's a private citizen who wants to run against somebody in the majority party, well, they can simply bring impeachment proceedings. And, of course, without due process, they're not going to be entitled to a lawyer, they're not going to be entitled to have notice of the charges against them.

It puts us into a position where we are the kind of judicial system and governing body that we're all very, very afraid of. From what we left, hundreds of years ago, and what regimes all around this world that endanger us, that's how they act. That's how they conduct themselves without giving the accused due process, taking their liberty without giving them just a basic fundamental right under the fifth through the 14th applied to the state's due process.

If you take away due process, in this country from the accused, if you take that away, there will be no justice, and nobody, nobody will be safe. But it's patently unfair for the House managers to bring an impeachment proceeding without any, again, without any investigation at all. And then stand up here and say, one, they had a chance to bring us evidence. And, two, let's see what we can do about flipping around somebody's other constitutional rights to having a lawyer or to having -- to see the evidence at all. It just gets brought in without anybody as it was here, without anybody having an opportunity to review it beforehand. They actually sent it to us on the 9th -- the day after we started this. So, it's a really big problem. The due process clause applies to this impeachment hearing. And it's been severely and extremely violated. This process is so unconstitutional, because it violates due process. I'm going to need you to get into the jurisdiction part. The due process part should be enough to give anybody who loves our Constitution and loves our country. Great pause to do anything but acquit Donald Trump. Thank you.

[17:50:10]

SEN. RICHARD BLUMENTHAL (D-CT): Mr. President?

LEAHY: Please, Senator from Connecticut.

BLUMENTHAL: Thank you, Mr. President. Mr. President, I send the question to the desk for the House managers.

LEAHY: The Senator from Connecticut, Senator Blumenthal has a question for the House managers and the clerk will report the question.

UNIDENTIFIED MALE: Former President Trump and his attorneys have cited the Brandenburg v. Ohio case in support of their argument that the First Amendment protects Trump. Did the Brandenburg case prohibit holding public officials accountable through the impeachment process for the incitement of violence?

RASKIN: Thank you, Mr. President, Senators. So let's start with the letter of more than 140 constitutional law professors, which I think they described as partisan in nature. That's a slur on the law professors and I hope that they would withdraw that. There are very conservative luminaries on that list, including the co-founder of the Federalist Society, Ronald Reagan's former Solicitor General Charles Fried, as well as prominent law professors across the intellectual ideological and jurisprudential spectrum. And they all call their First Amendment arguments frivolous, which they are.

Now, they've been -- they've retreated to the position of Brandenburg versus Ohio. They want their client to be treated like a guy at the mob. I think they said, a guy in the crowd, who yelled something out. Even on that standard, this group of law professors said there's a very strong argument that he's guilty even under the strict Brandenburg standard. Why? Because he incited imminent lawless action and he intended to do it and it was likely to cause it. How do we know it's likely to cause it? He did cause it, they overran the Capitol, right?

So, even if you want to hold the President of the United States of America to that minimal standard and forget about his constitutional oath of office, but as I said before, that would be a dereliction of legislative duty in our part. If we said, all we're going to do is treat the President of the United States like one of the people he's summoned to Washington to commit insurrection against us, OK? The President swore to preserve, protect and defend the Constitution of the United States. That's against all commerce.

Domestic or foreign, that's what our says, right? Did he do that? No, on the contrary. He's like the fire chief. He doesn't just say, go ahead and shout -- fire in a crowded theater. He summons the mob and sends the mob to go burn the theater down. And when people start madly calling him and ringing the alarm bells, he watches it on TV. And he takes his sweet time. For several hours, he turns up the heat on the deputy fire chief who he's mad at, because he's not making it possible for him to pursue his political objectives.

And then, when we say, we don't want you to be fire chief ever again, he starts crying about the First Amendment. Brandenburg was a case about a bunch of Klansmen who get assembled in the field. And they weren't near anybody such that they could actually do violent damage to people. But they said some pretty repulsive, racist things. But the Supreme Court said they weren't inciting imminent, lawless action, because you couldn't have a mob, for example, break out the way that this mob broke out, and took over the Capitol of the United States of America.

And by the way, don't compare him to one of those Klansmen in the field, asserting their First Amendment rights. Assume that he were the chief of police of the town who went down to that rally and started calling for, you know, a rally at the City Hall, and then nurturing that mob, cultivating that mob, pulling them in over a period of weeks and days naming the date and the time in the place, riling them up beforehand and then just saying, be my guest. Go and stop the steal. Come on.

Back to Tom Paine. Use your common sense. Use your common sense. That's the standard proof we want. They're already treating their client like he's a criminal defendant. They're talking about beyond a reasonable doubt.

[17:55:01]

They think that we're making a criminal case here. My friends, the former President is not going to spend one hour or one minute in jail. This is about protecting our republic and articulating and defining the standards of presidential conduct. And if you want this to be a standard for totally appropriate presidential conduct, going forward, be my guest, but we're headed for a very different kind of country at that point.

SEN. ROGER MARSHALL (R-KS): Mr. President?

LEAHY: The Senator from Kansas.

MARSHALL: I send the question to the desk.

LEAHY: The Senator from Kansas, Mr. Marshall has a question for the counsel for the former President, the clerk will read the question.

UNIDENTIFIED MALE: The House managers' single article of impeachment is centered on the accusation that President Trump singularly incited a crowd into a riot. Didn't the House managers contradict their own charge by outlining the premeditated nature and planning of this event, and by also showing the crowd was gathered at the Capitol even before the speech started, and barriers were pushed over some 20 minutes before the conclusion of President Trump's speech?

VAN DER VEEN: Yes, the House managers contradicted their own charge by outlining the premeditated nature and planning of this event. And by also showing the crowd gathered at the Capitol even before the speech started. And barriers were pushed over some 20 minutes before the conclusion of President Trump's speech. The answer is yes.

And I want to take the rest of my time to go back to the last question because it was completely missed by the House managers. Brandenburg v. Ohio is an incitement case. It's not an elected official case. That's what in bond. And the whole problem that the House managers have an understanding the First Amendment argument here is that elected officials are different than everybody else.

He's talking about fire chiefs. Fire chiefs are not elected officials. Police officers aren't elected officials. Elected officials have a different -- a higher standard from the holdings that I gave you, the highest protections, I should say. It's not a higher standard, it's a higher protection to your speech because of the importance of political dialogue, because of what you all say in your public debate about policy, about the things that affect all of our lives. That's wicked, important stuff. And you should be free to talk about that in just about any way that you can.

Brandenburg comes into play from a constitutional analysis perspective when you're talking about incitement. Is the speech itself insightful to riot or lawlessness, one of the two? And the answer here is no. In Brandenburg through, again, Bible believers, require you to look at the words of the speech. You actually can't go outside the words of the speech. You're not allowed too in the analysis.

So all the time they're trying to spend on tweets going back to 2015, or everything they want to focus on, that was said in the hours and the days afterwards are not applicable or relevant to the scholastic inquiry as to how the First Amendment is applied in this chamber, in this proceeding. And so, again, you need to be focused on what's the law. And then how do we apply it to this set of facts.