Proof Impeachment Livestack: Day 4

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{Note: I’ll regularly update this page during the fourth day of Trump’s second impeachment trial before the Senate. Refresh your browser page to see new updates. Note that this page is organized in reverse chronological order, with the newest posts first. If you’d like to comment on this or any article on this website, click the link below to become a full Proof subscriber. A link to the Day 1 “livestack” can be found here, and Day 2 can be found here.}

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(4:04PM) I won’t have too much to say about the question-and-answer session, as it’s mostly theater. I don’t know that anything gets said that changes anyone’s mind. I mean, for instance, Sens. Graham and Cruz—having just secretly met with defense counsel—just sent a question to defense counsel. No one really doubts that they talked about their question with defense counsel beforehand. At this point, both sides probably have some intelligence via scuttlebutt about which senators (if any) are still persuadable, and therefore how important it is for special focus to be placed on any questions asked by those senators. At this moment, we don’t really have information on any persuadable senators besides the 6 we know about from the “constitutionality” vote on Day 1 of the trial. That said, I have to think there are 1 to 3 senators at least who haven’t made up their minds yet. I just don’t know that the question-and-answer session is going to be what changes matters for them.

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(3:43PM) BREAKING NEWS (MSNBC): Sen. Lindsey Graham (R-SC) has now entered the defense team’s conference room. Plenty of reason to fear that he gave them questions in advance or gave them tips on how to answer certain questions to the liking of certain senators. This is a dirty, dirty game Trump’s allies are playing.

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(3:27PM) In trial advocacy, there’s a concept often referred to as “primacy and recency.” It says that jurors remember best, and are most affected by, the first thing they hear and the last. Proof that this was a terrible defense is that Castor ended on one of his weakest imaginable points: focusing on the Trump-Raffensperger phone call. I have no idea why they covered this at all, let alone at the conclusion of their presentation.

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(3:17PM) The Senate is now in a 15-minute recess. The Trump defense is over, to the extent that you can call it a defense. It certainly had lots of music videos, though. It was clearly intended just to please Trump as he watched at Mar-a-Lago; so much of what was said could only be considered effective in the ears of a man like Donald Trump. That is to say, it was mostly rhetoric and some what-aboutism with a dollop of bad legal analysis.

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(3:15PM) I’ve never heard so much music—from video clips—in the defense at any trial.

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(3:07PM) Castor now says Trump wanting his threats against Brad Raffensperger to remain secret means he’s innocent. But also the fact that he wanted Georgia’s signature verification process to be more public than it already was also means he’s innocent. Okay.

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(3:04PM) Castor’s argument appears to be that if Trump had never set up the events of January 6, a few dozen people would have showed up in DC anyway to storm the Capitol.

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(3:03PM) How is the fact some left Trump’s speech early to go to the Capitol because they’d already gotten the message loud and clear about what he wanted them to do a defense?

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(2:53PM) Castor: “Is it possible that his [Trump’s] words [on January 6] could have been misunderstood? I suggest to you that it is impossible.” Mind you, he’s saying that Trump’s words were so clearly peaceful that the only response you could take from them would be to act peaceably. Wow.

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(2:45PM) Castor is giving a closing aimed exclusively at the Trumpist peanut gallery. He is saying that the president is such an honorable and peaceable man that he would never have done what he’s accused of—the sort of argument geared toward convincing only those who’ve already made up their mind. Which means it’s not really an “argument” at all. Mostly what he’s doing is simply summarizing what the other lawyers have said.

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(2:43PM) Oh my God—they’re now showing the same video clips for the fourth time.

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(2:39PM) Castor is shifting into an argument that the House managers glorified violence in their presentation without ever connecting it to Donald Trump. Of course that’s not what happened—not what all of America saw—but it’s his time, so. He then adds, without laughing, “Donald Trump is the most pro-police, anti-mob president America has ever seen.” He points to how upset Trump was when Black people were protesting in mid-2020. It begs the question: why was his reaction so diametrically different when white people stormed the Capitol on January 6? We all know the answer, of course.

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(2:37PM) Castor: “There was no insurrection.” Apparently that only applies, he says, if you “take over TV stations” and “have a plan of what to do next.” Uh, what?

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(2:36PM) Bruce Castor Jr. is now speaking, and he’s already rambling. He’s talking about speaking schedules and topic appointment between members of the legal team. God knows why and I’m sure somewhere Trump is shouting at his television set. It seems Castor’s main point is to defend his position as the last speaker today. He’s most interested in defending his reputation, which has been savaged during this trial.

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(2:15PM) The universal opinion on the left and center and moderate right appears to be that the first half of Trump’s trial defense was merely “red meat” for the far right.

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(2:08PM) BREAKING NEWS (MSNBC): Ted Cruz, a juror, has once again entered the defense team’s conference room.

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(1:38PM) It’s not worth tracking Trump’s First Amendment defense, both because it’s legally weak and because it’s non-responsive to the House managers’ case—which is not based upon a single speech, but a course of words and conduct that extended out over many, many months (and in so doing, establishes intent).

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(1:28PM) I hope that fellow teachers and professors who, like me, teach (among other subjects) rhetoric and composition will note how much repetition there is in this representation. This defense is like that of a student who writes a five-page paper in the 20 minutes before class begins. Now van der Veen talking about something new, which is {checks notes} the Sixth Amendment to the United States Constitution. He now claims that Congress wanted Trump not to have counsel at his trial. Uh, what?

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(1:21PM) Van der Veen now says Congress is trying to make Trump its slave, creating new powers for Congress over the executive branch. I just… {sigh}.

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(1:17PM) We’re now watching the same video for the third time, it seems to me. Mind you, in the context of a 3-hour defense that was allotted 16 hours. That’s a pretty good sign you have no real defense. Oh, and some of the video is of Madonna. Good Lord.

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(1:13PM) Oh boy. Now van der Veen is misreading the incitement statute to remove the word “likely.” Google tells you this immediately (as does a thorough legal review):

“Foreseeability” is always an element of the concept of incitement, through the word “likely.”

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(1:10PM) Well, van der Veen pulled a bait-and-switch. He said he was going to talk about the law, but instead he’s offering a disquisition on the following theme: “This case is about political hatred.”

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(1:09PM) Now van der Veen is speaking again, presenting a First Amendment defense.

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(1:04PM) Here’s the sad truth: the House managers couldn’t lay out the case for Trump and his team’s involvement in the planning of the events of January 6 because doing so would have led to a call for witnesses, and the White House (and frankly the leadership in Congress) didn’t want that. This impeachment occurs with managers who have one hand tied behind their back. If they could call witnesses, they could establish that this impeachment isn’t about one speech—though the speech is part of it—but about a man in the White House who, along with his team and their agents, coordinated an attack on the Capitol. Instead, we have to pretend the whole case is about one speech. Mind you, the managers did their best to bring in prior Trump speeches and tweets, but they could not talk about meetings and plotting without bringing in the subject of witnesses who are not Trump.

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(1:01PM) How many times are they going to show the same videos? This is getting exhausting.

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(1:00PM) Apparently Donald Trump, as President of the United States, was to be held to the same standard as a 17 year-old Oregonian white anarchist dressed all in black with spray paint and an umbrella. That’s apparently the defense here.

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(12:56PM) It’s amazing, isn’t it, how using the word “fight” in an MSNBC interview in talking about a legislative fight over healthcare didn’t lead to an armed insurrection against the government like using the word 20 times in front of an armed mob before you launch them at the Capitol? What a preposterous (and endless) montage of people saying “fight” Trump’s lawyers are presenting now. Only a total moron would find this convincing. Folks, this is why we have liberal arts education in America—so you won’t fall for propaganda tactics like this.

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(12:47PM) So apparently things said by Madonna and Johnny Depp are attributable to Democrats. And apparently calls for aggressive protest are actually calls to violence. So why does Trump’s legal team have to put ominous music behind these quotes to make them seem other than what they are? To be clear, I don’t doubt that three to five of these statements were wildly inappropriate and indeed impermissibly incendiary. But were they given before a crowd that was about to (in Eric Trump’s words) “march on the Capitol” to “stop the steal”, with “steal” being a constitutionally permissible joint session of Congress?

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(12:45PM) Now Schoen is arguing that the fact that Trump committed impeachable offenses throughout his presidency, thereby leading to calls for his impeachment throughout his presidency, is evidence that he can’t be impeached now. Uh, what?

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(12:43PM) Schoen has invented a new definition of the word “manipulated.” He’s calling “manipulated evidence” any video clip that wasn’t exactly the excerpt Trump wanted Senate jurors to see. That’s not what the word means in a court of law. Such evidence (“manipulated evidence”) means doctored evidence.

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(12:42PM) Now we’re taking a long walk down memory lane… regarding Charlottesville.

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(12:39PM) This presentation argues that if the House managers didn’t show exactly the clips the defense wanted shown, it meant they were “manipulating” and “deceptively editing” evidence and showing something besides “reality.” But that’s… not how trial advocacy works. Not at all. You don’t make accusations of prosecutorial misconduct on these grounds.

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(12:36PM) I’m speechless right now. Schoen is now accusing the House managers of prosecutorial misconduct, and deliberate misconduct. I could easily see the managers rising and objecting right now. I know I would.

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(12:34PM) Shots fired: “We have reason to believe that the House managers manipulated evidence and selectively edited footage.” He also claims they doctored tweets. I have no idea where they’re going with this.

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(12:32PM) This is the weirdest supercut ever. It’s every time any House manager said the word “report” or “reportedly”, which Schoen says means “I have no real evidence.”

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(12:30PM) “A snap impeachment for political gain” is clearly going to be a phrase we hear a lot today. It’s almost like an armed insurrection and attack on the U.S. Capitol didn’t occur on January 6, and that Democrats just spontaneously decided to conduct an impeachment for jollies and (checks notes) “political gain.”

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(12:27PM) More gaslighting: Schoen says Democrats held back the articles from the Senate not because McConnell wouldn’t hold a trial but as a political strategy. He then says Trump was denied due process during the impeachment process, even though it is a simple fact that Trump was not entitled to due process during that process. It is during the trial process—i.e., right now—that Trump gets due process. This is also a man who previously was impeached for obstructing an impeachment inquiry. So why would they presume he’d act any differently this time? His attorney claims (falsely) that he would have.

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(12:25PM) BREAKING NEWS: Trump defense team announces it will complete its defense today and be ready for the “Q&A” portion of the trial to begin. This underscores how little Trump’s lawyers actually have to say in his defense. Again, wow.

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(12:24PM) He just said this impeachment is “constitutional cancel culture”, and called it a “smear” in the very same sentence in which he used a recognized slur against the Democratic Party (calling it the “Democrat Party,” which has long been acknowledged as a smear).

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(12:22PM) Van der Veen says Trump has consistently opposed violence. My goodness—the sheer gall of this defense.

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(12:21PM) Gaslighting-as-defense. This is what’s apparently in store for us today.

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(12:19PM) It’s clear that Team Trump’s favorite defense today will be “look what Black people did in 2020.” This may as well be the beginning of Trump’s 2024 presidential campaign, as it’s racist-baiting in a campaign-style format. But it’s also intermixed with taking Democrats’ comments about the Black Lives Matter demonstrations so far out of context that it would be hilarious if it weren’t also profoundly slanderous.

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(12:18PM) Now the Trump defense team is saying that Trump—well-known poet that he is—was speaking in metaphors on January 6.

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(12:16PM) Okay, this is the first surprising defense we’ve gotten: van der Veen says that more aggressive defensive postures were unavailable at the Capitol because of leftist political pressure to avoid a repeat of the violent police conduct at Lafeyette Square back in 2020. Wow, as big a stretch as I can possibly imagine a defense employing.

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(12:14PM) Now they’re moving to the “it was a preplanned attack unrelated to Trump” defense. And then he went where I didn’t expect: van der Veen noted that the first person arrested was “a leader of antifa”, a clear attempt to suggest that parts of this insurrection were a false flag operation by leftists. He notes that some other groups clearly planned things, too. But, he says of Trump, “You can’t incite what was already going to happen.”

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(12:12PM) Now they’re turning to the “look what Black people did in summer 2020” defense, which is not a defense. It’s weirdly intermixed with a Trump commercial cut like a propaganda video. The idea seems to be that Trump is the president of “law and order.” This is such a preposterous and embarrassing video, which has music behind it to make fairly innocuous statements by Democrats seem to be referencing violence when they’re not. What a hot mess that was. Wow.

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(12:11PM) I’m pretty sure van der Veen just said that Trump stands accused of “incitement to resurrection.” And he’s reading from notes. How do you mess that up?

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(12:08PM) Trump is now saying, through his lawyers, that he acted the same way post-election that many Democrats have. I don’t know what to say about this, as it’s beyond bizarre. In 2016, Clinton conceded and there was no concerted effort to overturn the election. The Democrats did not say the election had been stolen. And for what it’s worth, no one has contested that Trump had a right to bring lawsuits after the election—every candidate has that right. That’s not what this impeachment is about.

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(12:05PM) Now Van der Veen is moving now to the “perfect speech” defense. It’s the ultimate act of gaslighting—trying to convince people they didn’t see or experience something any sensible person would know they did. Van der Veen is presenting a fantasy version of what Trump said on January 6.

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(12:04PM) Interesting that it’s neither Schoen nor Castor who starts. Van der Veen begins with the “Democratic vengeance” defense, and he’s simply reading—badly—from his notes.

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(12:03PM) There is some talk that Trump’s defense could be so quick and paltry that we actually get to the “Q&A” portion of the trial today. It’d be stunning if Trump’s defense was this ephemeral, but given the vote-counting the Trumpists have done, it is certainly possible.

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(11:58AM) The long, dark shadow cast over today’s proceedings is the knowledge that three jurors (Sens. Lindsey Graham of South Carolina, Ted Cruz of Texas, and Mike Lee of Utah) met with the defense team yesterday to aid them, and the fact that many GOP senators have been caught paying virtually no—or no—attention to the House managers’ presentation. It’s a shadow because it confirms that this isn’t a trial in any serious sense, it is political theater on the Republicans’ part; most of them never had any intention of upholding their oaths as jurors. But I’ll say this: I heard one manager say, pre-trial, that their goal was to get to sixty votes to convict (many think they are at least at 56 already), and I found that fascinating. Why? Because it’s the number of votes you need to break a filibuster, which makes me wonder whether Democrats and any patriotic Republicans might try, if they lose this historic trial, to take a majority vote under Section 3 of the 14th Amendment to bar Trump from future office. They’d need 60 votes to block a filibuster. So this also means that there is tons of drama here still.

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(11:55AM) What you mainly can expect today are the following distractions (as a lawyer I can’t pretend that these are “defenses,” as they simply are not): (1) Democrats only impeached Trump to keep him from running in 2024, because they’re scared of him politically; (2) Democrats have said “inciting” things in the past on television and at rallies, and faced no consequences; (3) the Black Lives Matter rallies of the summer of 2020 were just as violent as the Capitol insurrection (untrue) and Democrats said nothing about them (untrue); (4) this is an illegal trial, because you can’t convict a former president before the Senate; (5) the proper forum for dealing with Trump’s actions is in a criminal prosecution (but that wouldn’t be warranted, the defense team would argue); (6) Democrats impeached Trump just to get revenge against Trump for a presidency they resented and detested; (7) Trump was simply exercising his First Amendment rights, and there’ll be hell to pay if going forward every politician must watch their words at every rally because they could be impeached for unpopular speech (it wasn’t just unpopular speech here, needless to say); (8) Donald Trump used the word “peacefully” on January 6, so clearly he didn’t want violence to ensure from his speech at the Stop the Steal/March to Save America event; (9) the fact that the breach began before Trump was done speaking, and arrests of insurrectionists who preplanned their involvement in the January 6 breach confirm that Trump didn’t incite them; (10) Trump’s videos after the breach—late in the day on January 6 and on January 7—establish that he didn’t support the violence; (11) there isn’t a sufficient connection between Trump and the violence in terms of the argument that he knew beforehand about what was going to happen; and (12) the National Guard was ultimately called out and the Capitol response was finally acceptable, with some of the problems with the response coming from a lack of preparedness among entities Trump had nothing to do with. Understand that all of these defenses comprise, to varying degrees, lies, dodges, disinformation, simple nonsense, or worse. But this is what they’ll go with.

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(11:45AM) I’ve written before at Proof (for full subscribers) that Donald Trump will use a “kitchen sink” defense that encompasses twelve different defenses. All of them are bad, some of them are offensive, but they’re all Trump has—and he believes he has the votes to win this trial already, so he mainly wants his lawyers to torch the Democrats today rather than present anything we might think of as a “defense.”

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(11:43AM) Day 4 is the first day of Trump’s defense, which has been allotted 16 hours in total (8 hours per day for two days). However, David Schoen, Trump’s new lead counsel—he was “second chair” as of the opening statements, but Trump was livid about the performance on Day 1 of Schoen’s partner on the legal team, Bruce Castor, Jr.—said yesterday that he thinks they will only go for three hours or so today. He also said to media yesterday that he thinks the entire trial could end tomorrow (Saturday), so who knows how many of Trump’s allotted 8 hours tomorrow they will use. Presumably, if they are only going to use 3 hours today and Schoen (due to his religious practice) is going to be absent from the Senate chamber tomorrow for the Sabbath, there can’t be much planned for the defense for tomorrow. Trump dislikes Castor, and the other Trump lawyer, Michael T. van der Veen, hasn’t played any role yet and (quite bizarrely) actually sued Trump last summer over the mail-in ballot issue. So whatever is going to happen tomorrow in terms of Trump’s defense, it will be easy and simple and uninspired enough that Trump will be willing to let Castor handle it, or the unproven and oddly selected van der Veen. In other words, Trump thinks he has the votes to be acquitted, so don’t expect much of a defense in this trial.

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