The First Amendment argument: This is the reddest herring of all. The First Amendment doesn’t shield Trump in the impeachment context. If he were being criminally prosecuted for inciting the insurrection, we could parse through the multiprong test of Brandenburg v. Ohio until the cows come home.
But the Trump defense lawyers’ efforts to muddy the constitutional waters notwithstanding, that’s not relevant here — although it’s entirely possible Trump’s incitement was enough to pass the Brandenburg test. As president, Trump had responsibilities beyond those that apply to ordinary citizens. And in an impeachment proceeding, the Senate is not bound by the precise definitions of the criminal code in determining whether he is guilty of a high crime or misdemeanor.
Consider this scenario: A president, clad in full Ku Klux Klan regalia, summons cameras to the Oval Office, newly bedecked in swastikas, to announce that he believes the Constitution is a joke and that he will no longer follow it. Is his ability to make these outrageous statements or display the Nazi emblem fully protected by the First Amendment? Yes. Would it be entirely within Congress’s prerogative — indeed, its duty — to impeach him for it? You bet.
Trump lawyer Michael van der Veen had the nerve to denounce a letter from 144 First Amendment scholars dismissing Trump’s First Amendment argument as “legally frivolous” for being a “partisan” document. The letter was signed by, among other conservatives, Federalist Society founder Steven Calabresi.
The Trump-didn’t-get-due-process argument: “The hatred that the House managers and others on the left have for President Trump has driven them to skip the basic elements of due process and fairness, and to rush an impeachment through the House, claiming, quote, ‘urgency,’ close quotes,” asserted Trump lawyer David Schoen. The best part about this one is how brazenly the argument that the House moved too fast sits alongside the simultaneous claim that the impeachment proceeding is invalid because it waited too long and can’t go forward because Trump is no longer in office.
Schoen blew a lot of hot air about the importance of process but offered no evidence of how Trump had been disadvantaged by its alleged absence. His first example? A “staged” photo shoot of the House managers preparing their case showed a “manufactured graphic and not a real screenshot of a tweet.” The horror. Even Schoen had to acknowledge, “to be fair,” that the managers never showed this image in their presentation.
The refusal to answer about what and when Trump knew about the insurrection: This is a bizarre and particularly infuriating subset of the due process claim. Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) asked a simple question, “Exactly when did President Trump learn of the breach of the Capitol, and what specific actions did he take to bring the rioting to an end, and when did he take them?” The response? Chutzpah, thy name is van der Veen. “The House managers have given us absolutely no evidence, one way or the other, on that question,” he blustered. “With the rush to bring this impeachment, there has been absolutely no investigation into that. And that is the problem with this entire proceeding. The House managers did zero investigation, and the American people deserve a lot better than coming in here with no evidence, hearsay on top of hearsay on top of reports that are hearsay. Due process is required here, and that was denied.”
Are you kidding me? His client refused the managers’ request to testify. And Trump is van der Veen’s client. Ask him, maybe?
When van der Veen offered information about Trump’s knowledge that day, in response to another question, from Collins and Sen. Mitt Romney (R-Utah), it was false. “At no point was the president informed the vice president was in any danger,” he asserted. “Because the House rushed through this impeachment in seven days with no evidence, there is nothing at all in the record on this point because the House failed to do even a minimum amount of due diligence.” But as Sen. Bill Cassidy (R-La.) pointed out in another question, Sen. Tommy Tuberville (R-Ala.) has stated that he spoke with Trump at 2:15 p.m. on Jan. 6 and told the president that Vice President Mike Pence had just been evacuated from the Senate chamber. “I dispute the facts that are laid out in that question," van der Veen said, "and, unfortunately, we are not going to know the answer to the facts in this proceeding because the House did nothing to investigate what was going on.”
The contention that evidence of advance planning for the assault on the Capitol somehow exculpates from of responsibility: “The fact that the attacks were apparently premeditated, as alleged by the House managers, demonstrates the ludicrousness of the incitement allegation against the president,” van der Veen thundered. “You can't incite what was already going to happen.”
This deliberately obtuse argument seeks to confine the charge against Trump to the single episode of his Jan. 6 speech. But that wasn’t the House case. The managers showed how he revved up his followers into believing the big lie that the election had been stolen from him; how he stoked their fury in the weeks following the election; and how he summoned them to Washington on the very day that the electoral votes were to be certified. The speech was simply the culmination of Trump’s incitement. Trump was in on the incitement — he was the incitement — from start to finish. The premeditation, which suggests evidence of menace that Trump knew or should have known about, doesn’t excuse Trump — it deepens his responsibility.
I could keep going — with the whataboutism over the use of the word “fight,” with the Trumpian blustering about “constitutional cancel culture” — but you get the point. Trump’s lawyers made a weak case badly. It may not matter to the end result, but it shouldn’t be ignored or excused.