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Trump Defense Team Presents Case to Acquit Trump; Trump Lawyers Run Nearly 10-Minute Clip to Show Democrats Use the Word "Fight" in Speeches; Trump Lawyer: "All Robust Speech Should be Protected." Aired 1-1:30p ET.

Aired February 12, 2021 - 13:00   ET


KAMALA HARRIS, VICE PRESIDENT OF THE UNITED STATES: They're not going to let up, and they should not.


DAVID SCHOEN, TRUMP IMPEACHMENT LAWYER: You claim that it's wrong to object to the certification of election results.


You, along with your allies in the media attempted to cancel and censor members of this Chamber who voiced concerns and objected to certification. Manager Raskin, you had been in Congress only three days when you objected in 2017. It's one of the first things you did when you got here.


UNKNOWN: An objection because 10 of the 29 electoral votes cast by Florida were cast by electors not lawfully certified.

JOE BIDEN, PRESIDENT OF THE UNITED STATES: Is the objection in writing and signed not only by the member of the House of Representative but also by a Senator?

UNKNOWN: It is in writing, Mr. President.

BIDEN: Is it signed by a Senator?

UNKNOWN: Not as of yet, Mr. President.

BIDEN: In that case the objection the can not be entertained.

UNKNOWN: Mr. President, I object to the certificate from the State of Georgia on the grounds that the electoral votes were not--

BIDEN: There's not debate -- there's no debate.

UNKNOWN: And I object to the certificate from the State of North Carolina based on violations of the Human Rights Act-- BIDEN: There is no debate -- there's no debate in the Joint Session.

UNKNOWN: (Inaudible).

UNKNOWN: Can I object because people are horrified by the overwhelming evidence of Russian interference--

BIDEN: Section 18, Title 3 of the United States Code prohibits debate.

UNKNOWN: I object.

STEPHANIE STUBBS JONES, FORMER U.S. REPRESENTATIVE FOR OHIO: Objected to the counting of the electoral votes of the State of Ohio.

UNKNOWN: I object to the certificate from the State of Alabama. The electors were not lawfully certified.

UNKNOWN: I object to the 15 votes from the State of North Carolina because of the massive voter suppression and the closing of voting -- polling booths--

BIDEN: There's no debate.

UNKNOWN: -- in the early voting--

BIDEN: There's no debate.

UNKNOWN: -- 16 to 1.

BIDEN: There's no debate. The gentleman--

UNKNOWN: And the massive voting suppression that occurred (inaudible)--

BIDEN: The gentlewoman (ph) will suspend.

UNKNOWN: I have an objection to the electoral votes.

REP. MAXINE WATERS (D-CA): The objection is in writing and I don't care that it is not -- it is not signed by a member of the Senate.


REP. MAXINE WATERS (D-CA): I do not wish to debate. I wish to ask is there one United States Senator who will join me in this letter of objection?

BIDEN: There is no debate.

UNKNOWN: The objection is signed by a member of the House but not yet by a member of the Senate.

BIDEN: Well it is over.



SCHOEN: And when the House Managers realized that the President's actual words could not have incited the riot, as you alleged in your article of impeachment, you attempted to pivot. You said that raising the issue of election security and casting doubt on the propriety of our elections was dangerous.

One of the House Managers, Mr. Cicilline, told you that this is not about the words Mr. Trump used in isolation. Rather it is about the big lie, the claim that the election was stolen.

The House Managers told you that it's the big lie that incited the riot and that the big lie was President Trump's claim that the election was not a fair election or that the election was stolen.

Claiming election was stolen, you were told, are words that are insightful to a candidates followers and caused people to respond violently. Claiming election was stolen or not legitimate is something that a candidate should never do because he or she knows or should know that such a claim and such words can actually incite violent insurrection, you were told.

Well it seems that the House Manager's position must be actually a bit narrower than that. The House Manager's position really is that when Republican candidates for office claim an election is stolen or that the winner is illegitimate it constitutes inciting an insurrection and the candidate should know it.

But Democratic Party candidates for public elective office are perfectly entitled to claim the election was stolen or that the winner is illegitimate or to make any other outrageous claim they can. It is their absolute right to do so. And it is their absolute right to do so irrespective of whether there's any evidence to support the claim.

Democratic candidates can claim that an election was stolen because of Russian collusion or without any explanation at all. And that is perfectly OK and is in no way incitement to an insurrection. And somehow when Democratic candidates publicly decry an election as stolen or illegitimate it's never a big lie. You have been doing it for years.


REP. JOAQUIN CASTRO (D-TX), IMPEACHMENT MANAGER: But could you imagine telling your supporters that the only way you could possibly lose is if an American election was rigged and stolen from you. And ask yourself whether you've ever seen anyone at any level of government make the same claim about their own election.

SEN. SHERROD BROWN (D-OH): If Stacey Abrams doesn't win in Georgia, they stole it, it's clear. It's clear. And I would -- I say that publicly, it's clear.

HILLARY CLINTON, FORMER SECRETARY OF STATE: You can run the best campaign, you could even become the nominee and you could have the election stolen from you. He knows he's an illegitimate President, he knows. He knows that there were a bunch of different reasons why the election turned out the way it did.

STACEY ABRAMS, FORMER STATE REPRESENTATIVE, D-GA.: Votes remain to be counted. There are voices that were waiting to be heard.


And I will not concede.

JAKE TAPPER, CNN HOST: Respect and I respect where you're coming from and I respect that the issues that you're raising, you're answering the question. Do you think it was--

ABRAMS: I am -- well I'm not--


TAPPER: -- what is -- you're not using the word legitimate.

REP. NANCY PELOSI (D-CA): There are still legitimate concerns over the integrity of our elections and of ensuring the principle of one person, one vote.

SEN. BERNARD SANDERS (I-VT): I agree with tens of millions of Americans who are very worried that when they cast the ballot on an electronic voting machine that there is no paper trail to record that vote.

PELOSI: But constantly shifting vote tallies in Ohio and malfunctioning electronic machines which may not have paper receipts have led to additional loss of confidence by the public. This is their only opportunity to have this debate while the country is listening and it is appropriate to do so.


SCHOEN: House Manager Castro no longer has to try to imagine it thanks to the distinguished Senator and others. It didn't have to be this way. The Democrats promised unity, they promised to deliver the very COVID relief in the form of $2,000 stimulus checks that President Trump called for. They should have listened to their own words of the past.

I leave you with the wise words of Congressman Jerry Nadler.


REP. JERROLD NADLER (D-NY): The effect of impeachment is to overturn the popular will of the voters. We must no overturn an election and remove a President from office except to defend our system of government or our Constitution liberties against a dire threat.

And we must not do so without an overwhelming consensus of the American people. There must never be a narrowly voted impeachment or an impeachment supported by one of our major political parties and opposed by the other. Such an impeachment will produce the divisiveness and bitterness in our politics for years to come. And will call into question the very legitimacy of our political institutions. The American people have heard the allegations against the President and they overwhelmingly oppose impeaching him, they elected President Clinton, they still support him, we have not right to overturn the considered judgment of the American people.

Mr. Speaker, the case against the President has not been made. There is far from sufficient evidence to support the allegations. And the allegations, even if proven true, do not rise to the level of impeachable offenses. Mr. Speaker, this is clearly a partisan railroad job.

The same people who today tell us we must impeach the President for lying under oath almost to a person voted last year to reelect the speaker who had just admitted lying to Congress in an official proceeding.

The American people are watching and they will not forget. You may have the votes, you may have the muscle but you do not have the legitimacy of a national consensus or of a Constitutional imperative. This partisan coup de-tat will go down in infamy in the history of this nation.

Thank you, Mr. Speaker, I yield back the balance of my time.


SCHOEN: Thank you.

MICHAEL VAN DER VEEN, TRUMP IMPEACHMENT LAWYER: Good afternoon, again, Senators, Mr. President. There are two fundamental questions for purposes of this free speech analysis. First, does the First Amendment to the Constitution apply in this Chamber to these impeachment proceedings?

Second, if it does, do the words spoken by Mr. Trump at The Ellipse on January 6 meet the definition of Constitutional incitement so as to void the protection afforded by the First Amendment?

I will explain why the answers to both of these questions must be a resounding yes. The Constitution and the First Amendment must certainly apply to these impeachment proceedings and Mr. Trump's speech deserves full protection under the First Amendment.

But before getting into the legal analysis some preliminary observations about the House Managers case should be made. First, this case, unfortunately, is about political hatred. It has become very clear that the House Democrats hate Donald Trump.


This type of political hatred has not place in our political institutions and certainly no place in the law. This hatred has led the House Managers to manipulate and selectively edit Mr. Trump's speech to make it falsely appear that he sought to incite the crowd that violently attacked the Capitol. He didn't, and we will show you why.

The hatred has led the House Managers to make some astounding legal arguments. They astoundingly urge you to disregard your oath by ignoring the First Amendment of the Constitution. They also ignore landmark binding United States Supreme Court cases precedent would and bond. Both of which unequivocally hold that elected officials have core First Amendment rights to engage in the exact type of political speech which Mr. Trump engaged in.

I was shocked the House Managers not only spent a mere three pages on the First Amendment analysis in their trial memo, but yesterday they spent a mere 10 minutes at the end of their case as a throw away.

What we have read and what we have heard is devoid of any constitutional analysis for less than what I would expect from a first-year law student. They left out landmark cases, total intellectual dishonesty.

And finally, hatred is at the heart of the House Managers' frivolous attempt to blame Donald Trump for the criminal acts of the rioters based on double-hearsay statements of fringe right-wing groups based on no real evidence other than rank speculation. Hatred is a dangerous thing. We all have to work to overcome it. Hatred should have no place in this chamber, in these proceedings.

The second observation. The Senate is presented with an extraordinary task sitting in judgment of a former president's words in a speech that he gave at a political event. The House Managers accuse Mr. Trump of using his words to incite the horrific events at the Capitol on January 6, but yesterday they gave you a new and novel standard of incitement with an element of foreseeability (ph), a negligence concept.

They cite zero case law. They made it up. This task of applying a completely made up legal standard of incitement to an impeachment proceeding is truly an unprecedented task for the Senate, and that is something the Senate must seriously consider when deciding the issue.

Do you want to create a precedent where the Senate will be tasked with sitting in judgment as to the meaning and implied intent of a president's words or words of any elected official?

Will that allow and maybe encourage a majority party to weaponized the awesome power of impeachment against the minority to suppress a point of view? Will the Senate then have to deal with constant articles of impeachment by a majority party accusing minority presidents or other elected officials of so-called insightful or false speeches?

You can see where this would lead. Sadly, we have all seen the political rhetoric get wretched up over the last few years. We've all be witnesses to many incendiary words by our officials at political events broadcasted over the media internet. In each of those instances will there now be Senate impeachment hearings?

One last observation. We agree with the House Managers context does indeed matter. The inflammatory rhetoric from our elected officials must be considered as part of the larger context of Mr. Trump's speech at the ellipse on January 6.


The inflammatory language from both sides of the aisle has been alarming frankly, but this political discourse must be considered as part of these proceedings to contextualize Mr. Trump's words.

We have some video to play that highlights some of what I'm talking about. I preface this video by noting I am not showing you this video as some excuse to Mr. Trump's speech. This is not about -- this is not what-about-ism. I am showing you this to make the point that all political speech must be protected,


PELOSI: I just don't even know why there aren't uprisings all over the county. Maybe there will be.

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

PELOSI: I think I'd be ready to throw a punch. We have to be ready to throw a punch.

SEN. JON TESTER (D-MT): Donald Trump, I think you need to go back and punch him in the face.

NICOLE WALLACE, NBC HOST: That I thought he should have punched him in the face.

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

JOSEPH R. BIDEN JR., PRESIDENT OF THE UNITED STATES: I think I'd like to take him behind the gym if I were in high school.

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

You know, I wish we were in high school I could take him behind the gym.

WATERS: I will go and take Trump out tonight.

SEN. ELIZABETH WARREN (D-MA): Take him out now.

JOHNNY DEPP, ACTOR: When was the last time an actor assassinated a president?

RICK WILSON, CO-FOUNDER, THE LINCOLN PROJECT: They're still going to have to go out and put a bullet in Donald Trump.

CHRIS CUOMO, CNN HOST: Show me where it says that protesters are supposed to be polite and peaceful.

WATERS: And you push back on them and you tell them they are not welcome anymore anywhere.

MADONNA CICCONE, SINGER: I have thought an awful lot about blowing up the White House.

BOOKER: Please get up in the face of some congresspeople.

PELOSI: People will do what they do.

SCHUMER: I want to tell you, Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price.

REP. RASHIDA TLAIB (D-MI): We're going to go in there. We're going to (inaudible).

REP. CYNTHIA JOHNSON (D-MI): This is just a warning to your Trumpers. Be careful. Walk lightly. And for those of you who are soldiers, make them pay.

ELLEN DEGENERES, THE ELLEN DEGENERES SHOW HOST: If you had to be stuck in an elevator with either President Trump, Mike Pence, or Jeff Sessions, who would it be?

HARRIS: Does one of us have to come out alive?



VAN DER VEEN: Again, I did not show you their robust speech to excuse or balance out the speech of my client for I need not. I showed you the video because in this political forum all robust speech should be protected and it should be protected evenly for all of us.

As a brief aside, we should all reflect and acknowledge the rhetoric has gotten to be too much and over the top. It is grading on the collective well-being of the bodied public, the citizens. Most were likely to stop, but the point is when you see speech such as this you have to apply the First Amendment evenly, blindly. She is blind, lady justice.

Question one: Does the First Amendment apply to this chamber in these proceedings? The House Managers' position as stated in their trial brief is, and I quote, "The First Amendment does not apply at all to an impeachment proceeding." That's their position. This is plainly wrong.

The text of the First Amendment expressly restricts Congress from regulating speech. It says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." To ignore the Constitution would be contrary to the oath of office of a United States senator. "I do solemnly swear or affirm that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same."


Well you all know the rest. No, the Senate cannot ignore the First Amendment. The Constitution itself limits the ability of the House to impeach to unlimited items such as high crimes and misdemeanors.

The position advanced by the House Managers is essentially an unlimited impeachment standard without constitutional guardrails unmoored to any specific legal test other than the unbridled discretion of Congress.

This is distinctly not the intent of the framers. The framers were aware of the danger of any impeachment process that would make the president the mere creature of the legislature, a quote directly from the framers while debating the impeachment process on the floor of the constitutional convention of 1787.

The framers were fearful that any impeachment process that gave Congress full discretion on the standard for impeachment would constitute nothing less than a violation, quote, "a violation of the fundamental principle of good government."

One founding father, James Wilson, wrote extensively on the impeachment process. Mr. Wilson was a renowned legal scholar at the time, a law professor at the University of Pennsylvania in Philadelphia.

He was a major force in drafting and adopting the Constitution in 1787. He served as one of the first Supreme -- one of the first six Supreme Court justices 1789 to 1798. He was appointed by President George Washington.

In fact, Wilson taught the first cores new Constitution to President Washington and his cabinet. The first in the nation's history in Philadelphia at the University of Pennsylvania in 1789. Wilson in his law lectures, the first of their kind under the Constitution plainly states that the Senate may not ignore the Constitution in impeachment proceedings.

He states that lawful and constitutional conduct may not be used as an impeachable offense. Let me say that again. He states that lawful and constitutional conduct may not be used as an impeachable offense.

Read along with me. "The doctrine of impeachments is of high import in the constitutions of free states. On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated character should not be sacrificed merely on account of their elevation. No one should be secure while he violates the constitution and the laws; everyone should be secure while he observes them." To be clear, James Wilson is saying that the Constitution does, indeed, imply when judging whether to convict an official by impeachment. If the complained-of conduct is constitutional it cannot be impeachable.

Are we to ignore the words and teachings of James Wilson? The House Managers surely want you to. The House Managers have made several references to this letter signed by 140 partisan law professors calling Mr. Trump's First Amendment defense legally frivolous. This is really an outrageous attempt to intimidate Mr. Trump's lawyers.

Whenever a lawyer advances a truly frivolous argument they may violate professional, ethical rules and could be subject to discipline. This letter is a direct threat to my law license, my career, and my family's financial well-being.


These law professors should be ashamed of themselves and so should the House Managers. How dare you? Do you really hate Donald Trump so much that you're willing to destroy good, hardworking people's lives, people that are only doing their jobs and frankly as counsel for an accused fulfilling a constitutional role?

It's astounding really. I'm a citizen, not a politician. I know these First Amendment arguments are not anywhere close to frivolous. They're completely meritorious. Interestingly, the law professors' letter was issued on February 5, three days before we even filed our legal brief in this matter and they ignored landmark, bedrock Supreme Court cases directly addressing this issue.

In our brief, we have a direct quote from James Wilson, the founding father supporting our position. The direct quote was documented in the founding fathers original legal papers -- do I have (inaudible) -- on the subject.

He was the primary draftsman of the Constitution and taught the new Constitution to President Washington. He says so long as acts of elected officials, like Mr. Trump, are constitutionally protected he should not be impeached.

We have landmark U.S. Supreme Court decisions, would and bonds -- which I'll explain in detail -- supporting our position. All of this the House Managers and the partisan law professors completely and misleadingly ignored.

Frivolous? Hardly. The letter is a bully tactic, and I think evidence is the House Managers know they have a problem with the First Amendment defense on the merits, so they're resorting to such tactics.

The House Managers' suggestion that the First Amendment does not apply to this impeachment process is completely untenable. Ignoring the First Amendment would conflict with the Senators' oath of office. It would also conflict with, well, settled Supreme Court precedent and ignore the intent of the framers of the Constitution such as James Wilson. Above all else ignoring the Constitution would adopt the new Raskin commonsense doctrine we heard yesterday, eroding hundreds of years of First Amendment protections. We are here under the Constitution. It is illogical what the House Managers say. The Constitution does apply to this constitutional impeachment process. It's double talk, nonsense, illogical.

If the House Managers had their way they would ignore all of the Constitution. Does that include the sixth amendment, the right to counsel? They would have Mr. Trump sitting here without lawyers. And who would be next? It could be anyone. One of you or one of you.

You must reject this invitation to ignore the First Amendment. It is anti-American and would set dangerous precedent forever. The law has developed over the years to clearly establish elected officials have the right to engage in protected speech. Mr. Trump is not just the guy on the street or a guy at a bar or a fire chief or a police officer. There were a few of them in there. All analogies gives by the House Managers.

These sideways analogies are wrong. Mr. Trump was an elected official and there is an entire body of law, Supreme Court landmark cases supporting the conclusion that Mr. Trump actually has enhanced free speech rights because he is an elected official. These cases are ignored by the House Managers and the law professors, and that, too, is total intellectual dishonesty.

The Supreme Court has long held that the First Amendment's right to freedom of speech protects elected officials.