Trump gets the defence he was clamouring for
WASHINGTON—“Mr. Raskin, we aren’t having fun here,” Donald Trump’s lawyer, Michael van der Veen, said during the question and answer portion of the former president’s second impeachment trial. “This is about the most miserable experience I’ve had down here in Washington, D.C.”
The man he was addressing, House of Representatives impeachment manager Jamie Raskin, had a son take his own life over the holidays, and buried him on Jan. 5. The next day, his grieving family came to be with him at the Capitol, as he recounted on the first day of this trial — where they were forced to shelter in fear when armed insurrectionist supporters of Trump took over the building. His children texted loved ones, thinking they might die. Raskin was forced to shelter separately from his surviving children as insurrectionists banged on doors, trying to barge in.
Which is to say it’s a fair bet that Raskin, like almost all of the senators in the chamber, have had worse days in Washington than van der Veen was having.
Trump’s lawyer seemed to have overlooked the context in which his remarks would be received, a theme that ran through the arguments of his team.
Not that Trump’s team was even having a particularly bad day. When they presented Tuesday on the constitutionality of trying a former president, they not only lost the argument by the vote of the Senate but were widely mocked as incompetent for the meandering irrelevance of their arguments. Trump himself was reported to be unhappy.
Their performance Friday, in which they used only two and a half of the 16 hours available, seemed to take the boss’s feedback into account. Indeed, it was a positively Trumpian performance.
The president’s counsel called the impeachment a “politically motivated witch hunt.” They said the trial was inspired by “hatred, vitriol and political opportunism.” They attacked the media. They attacked Democrats. They said this impeachment was a symptom of “constitutional cancel culture.”
Van der Veen, a personal injury lawyer, characterized a group of 144 First Amendment lawyers and constitutional law professors (who had called his First Amendment arguments “legally frivolous”) as “partisan law professors,” although their number included a founder of the conservative Federalist Society and Ronald Reagan’s solicitor general.
Trump’s lawyers defended his phone call pressuring a Georgia election official to “find” fraudulent ballots. They showed video of Trump repeating the phrase “law and order” and lots of clips of violence at Black Lives Matter protests in the days after George Floyd’s death.
In other words, much of their presentation had the feel of a Trump campaign video.
“This is not what-aboutism,” Trump lawyer David Shoen said about a presentation, the point of which seemed to be, “What about the Democrats?”
To wit: for a huge chunk of their time, Trump’s lawyers played and replayed videos of Democratic politicians calling on their supporters to “fight.” Over and over again. And over and over. And over. And again.
“Every single one of you,” Schoen said, gesturing to the senators on the floor, “and every one of you,” he said, pointing to the House members who had served as the prosecutors. The point was that when Trump called on his supporters to fight on Jan. 6, he was simply engaging in the same kind of standard political rhetoric every politician in that room does.
Which might be persuasive if you looked only at the word, and ignored the context. None of those other instances they showed resulted in armed supporters committing violence, and no one ever said they would. When Trump called his supporters to Washington on Jan. 6, on the other hand, violence was widely predicted by authorities and the media.
The context is that when Sen. Elizabeth Warren talked about “fighting” for better health care, she was not addressing people who were known to have committed violence at her rallies, and she had not egged them on as they did so. Her supporters had not previously engaged in the armed storming of state houses. They had not, prior to her comments, amassed at a specific site where their opponents were gathered for the purpose of stopping them from doing something. None of those instances was part of a long and dishonest campaign to overturn the results of an election.
And then there was the further context of the words of the rioters themselves, who said repeatedly that they came at the invitation of the president, and were following his orders.
Which likely doesn’t matter much to the verdict expected Saturday. There’s no judge to litigate the First Amendment claims, nor an impartial jury to sort through the text of the president’s words and the context in which they were spoken. There was instead a chamber full of elected officials who had, for the most part, already made up their minds. Some of the Republicans among them had even advised the president’s legal team on Thursday night.
The defence wasn’t offered to influence senators, a majority of whom are likely to vote to convict the president, but not by the required two-thirds margin that impeachment trials require. It was a presentation to please the president, and it likely succeeded in that. And to address the public watching at home, to muddy up the picture enough that some — especially those already inclined to support Trump politically — can just wave their hands and say that Trump’s actions were just more partisan bickering. More of the usual.
That Jan. 6 was just another bad day — like, for instance, a lawyer might have making arguments in an unfamiliar forum. Which is to say that in the context of Trump’s presidency, it was exactly the defence you’d expect.