A Defense that Didn’t Defend

Terry H. Schwadron

Feb. 13, 2021

We may never again be able to use the word “fight” without giggling.

However difficult to mount, the defense of Donald Trump was an unconvincing if sometimes fiery mix of ignoring the reasons for the riot, seeking to misdirecting eyes to anyone but Trump, and hiding behind process and the most narrow interpretations of words like “incitement.” That tape to prove that Trump wasn’t the only politician to use the word “fight” was the everyone-does-it defense, though no one else had launched an attack on the U.S. Capitol as a result.

It was a presentation targeted to substitute specific criminal definitions in place of a broader look at Trump’s abuse of office, and to insert promotion of Law & Order over time for provoking the attack. It also was an argument that felt as if it had arrived from another universe than the reality we had been revisiting for two days. The defenders doubled-down on the Big Lie of Trump-promoted election fraud.

And, as an added not-so-subtle partisan maneuver, Republican Senators Ted Cruz, Lindsey Graham and Mike Lee, the supposedly independent jurors, met privately with defense lawyer David Schoen Thursday night. Schoen said it was to familiarize him with procedures. Indeed, Cruz and Graham each went back during the trial proceedings, as if that is a normal thing to do.

Really? It’s not enough that Republicans hold the votes to block conviction? They have to try to gimmick the trial, too? Why do they bother with taking an oath?

Thankfully, the defense was over in three hours or so, in part because signals were clear from Republican senators that their pro-Trump votes already were lined up, in part because there were reports of in-fighting — oops, debate — among the Trump lawyers, and in part because, well, there was not much to argue in answer to hours of video clips that had been so damning to Trump’s protestations of appropriateness.

The challenge for the defense was high because two days of video of the riot had been so effective at persuading that there was no question that this mob had assembled at Trump’s command, nor that Trump had delayed any condemnation or order to stop even after his attempts to halt election certification had run fatally amok,

As Slate’s William Saletan noted, “If Trump wasn’t directing the mob to attack or threaten Congress, what was he telling it to do?”

Elements of Defense

The legs of the defense — more PR roll than actual defense — required acknowledging that the mob attack indeed was horrific, just that it was not Trump’s fault; those insurgents who had invaded the Capitol apparently were on their own. Or maybe they weren’t even Trump supporters. At one point, one lawyer started re-arguing Georgia’s mail ballot signatures.

The defenders selectively cited court decisions to argue that the impeachment of a now-former president was a legal step too far, that Trump’s remarks that day and before or since was covered by free speech, and that, in any case, sharp remarks open to misinterpretation for prompting violence is now commonplace politics, directing us to the remarks of various Democrats about Black Lives Matter protests last summer.

Their arguments overlooked the Senate vote declaring this process Constitutional, and sought both the broadest view of free speech and the narrowest view of the legally indefinite finding of “incitement.” The arguments ignored the views of many legal scholars who say these interpretations do not apply in impeachment trials that are meant to decide whether there was official abuse of office rather than a specific federal crime.

The arguments sought to narrow incitement to the specific words of Trump’s speech minutes before the mob attack, and not on Trump’s months-long campaign to overturn his losing election results. Defense lawyers called the trial a political witch hunt, and said the prosecution team was hypocritical and had cherry-picked phrases that fit their arguments. It landed oddly, since Trump spent four years saying we were to understand his meaning rather than his words.

Despite the defense arguments, seeking to equate the coordination, planning and fight-language of a presidential-sanctioned and directed mob at the Capitol for personal political and anti-democratic gain seems far different from any provoking language used by Democratic politicians in calling for racial justice after the videoed police killing of George Floyd.

Presentation by the defense was short enough to allow for questions from senators aware that polling this week has showed a small majority of U.S. voters favoring conviction with 83% of Democrats for conviction and the same percentage of Republicans against. Most of the questions seemed set-ups for lawyers of either side to spike the ball one more time; few elicited any information that would persuade a non-believer, though there were a few dust-ups over tweet interpretations and unpleasant asides between the lawyer teams about having short-circuited legal thinking.

What the Defense Wanted

The defense wanted us to conclude that Trump goaded us all, with good reason, totally within the bounds of “appropriateness” and strict legality. Lead lawyer Bruce Castor argued that Trump was our most anti-mob, most Law & Order president — ignoring that there was a mob attack this time, with physical attacks on police officers.

This was an upside-down, Day for Night legal offering with no mention of millions of Trump campaign dollars going into the planning, no mention of pointing his supporters to the Capitol, no mention of failing to stop the riot once under way, putting lawmakers at risk of harm or death.

To them, Trump did nothing special to cause this attack on the Capitol, had no responsibility to stop it, and was well within his rights both as a president and as an American to intimidate election officials in various states to make up votes, and to threaten the lives of his own vice president and others in the line of succession.

Look, because the partisan fix was in on a process that requires two-thirds of the Senate, the defense lawyers/ job basically was done before it began. It did not matter whether they found an actual defense that could persuade; this was the expression of exactly the kind of entrenched, “deep-state,” institutional raw political power that Trump’s whole presidency aimed to topple.

At the end of the day, Team Trump is protecting someone who seriously abused his office, who has left the Capitol and American elections vulnerable to further attacks, and has snubbed the Constitution.

They have the Republican votes to win. I hope the lawyers get paid.