Trump lawyers look to avoid repeat of early trial stumbles

Former President Trump’s legal team is looking to rebound at the impeachment trial Friday after a rough initial showing that was ridiculed by Senate Republicans.

Trump’s lawyers will take center stage after two days of compelling and emotional testimony from the House Democratic impeachment managers, who introduced harrowing new footage of the deadly riots that left lawmakers shaken.

Attorneys Bruce Castor and David Schoen are under immense pressure after a rocky start that was so bad it moved Sen. Bill Cassidy (R-La.) to vote to move forward with the impeachment trial, after he previously voted it was unconstitutional.

But the math does not appear to have changed dramatically, and it seems likely that Republicans will acquit Trump for a second time at the end of the trial, with only a handful of potential defectors.

Still, the Trump era is very much on trial this week as well, meaning the effectiveness of Trump’s attorneys could reverberate politically long after the trial ends.

“We know the outcome, it’s all process now. But it’s important we don’t leave any attacks unanswered because there is a sense that they’re trying to indict not just Trump but everyone who has ever supported him,” said a Republican who is in touch with the defense team.

Trump’s lawyers have a total of 16 hours to present their defense, though adviser Jason Miller has said they would likely use just half that time.

Schoen, who received high marks from Trump’s allies after Castor’s meandering performance on the first day of the trial, will be stepping aside at sundown on Friday in observance of the Jewish Sabbath.

When asked by reporters if he intends to use the entire 16 hours, Schoen responded: “Hope not.” 

Democrats used about 12 of their 16 hours for the prosecution.

“The quicker we can get this behind us, the better,” the GOP source said, adding that Trump’s attorneys “don’t want to make this a long, drawn out process.”

The allegation that Trump directly incited the mob is at the heart of the Democratic case. House impeachment managers drew a direct line from Trump’s election fraud allegations and his demands that his supporters “fight” for him to the deadly riot that consumed the Capitol on Jan. 6.

In a trial memorandum previewing their defense, the defense team argued that the riot was planned before Trump’s speech, that the president did not directly incite the mob, that he was denied due process, and that the First Amendment offers sweeping protections for political speech.

At the same time, Trump’s attorneys will not try to minimize the events of Jan. 6.

The disturbing footage of senators running for their lives and barely dodging confrontations with the angry mob was emotionally wrenching for lawmakers to watch and perhaps the most compelling part of the prosecution’s case.

“[Trump] has condemned the violence and doesn’t in any way want to be associated with what happened in this violent incident,” Schoen said Thursday on Fox News. “He’s condemned the people involved, he’s condemned the violence itself and obviously he’s quite offended at trying to be tied into it.”

The defense instead will argue that Democrats cherry picked words from Trump’s speech to make it seem like he was inciting the mob. They’ll point to instances where Trump told his supporters to march over to the Capitol to “peacefully and patriotically make your voices heard.” 

“The Democrats aren’t using the entire speech. Everything is selective,” Miller said on Fox News. “Not only regarding his speech but regarding the Constitution … they haven’t played the clips of President Trump saying be peaceful, patriotic.” 

Trump’s attorneys will also point to reports that some of the rioters planned the siege on the Capitol beforehand, although Democrats argued that Trump knew this and was playing with fire.

They’ll argue that urging the crowd to “fight” was a figurative term, and one that is used often in politics, with examples of similar rhetoric from Democrats around the racial justice protests that broke out across the country last summer.

That line of defense goes to the First Amendment argument Trump’s attorneys will make, saying that all of the former president’s remarks are protected speech and that a vote to convict will make all lawmakers liable for the actions of their worst supporters.

Trump’s attorneys will argue that the bar for incitement is high, requiring a direct call for violence, and that the First Amendment was specifically designed to protect unpopular speech. 

“The fatal flaw of the House’s arguments is that it seeks to mete out governmental punishment — impeachment — based on political speech that falls squarely within broad protections of the First Amendment,” the defense attorneys wrote. “Speech and association for political purposes is the kind of activity to which the First Amendment offers its strongest protection.”

Trump’s legal team will also argue that he was denied due process as the House rushed to impeach him, and that the trial is a political effort aimed at keeping the former president from ever running for office again.

Democrats deny the impeachment is political, saying Trump must be held accountable for his actions and prevented from inciting violence again.

“I’m not afraid of Donald Trump running again in four years,” Rep. Ted Lieu (D-Calif.) said Thursday. “I’m afraid he’s going to run again and lose, because he can do this again.”

It’s unclear whether the defense team will raise the subject of Trump’s unsubstantiated claims of widespread fraud. Many of the rioters who consumed the Capitol to disrupt the Electoral College vote count did so because they believed it was their duty to prevent Democrats from stealing the election.

Democrats have dubbed Trump’s election claims “the Big Lie” that planted the seeds for the riot. 

In a pre-trial memo, Trump’s attorneys said that reasonable people can disagree about whether last-minute changes to election laws in some states to accommodate voters during the coronavirus pandemic was illegal fraud designed to tilt the playing field against Trump.

Keith Naughton, who consulted for Castor for two years in the early 2000s, said he was “mystified” by Trump’s defense team on the first day of the trial. He said Castor’s strength has in the past been at playing to the crowd and dealing with the local media, neither of which he’s mastered in Washington. 

“What Trump’s team doesn’t seem to understand is that this is not a criminal trial, it’s a political process. So they should be changing the subject from what the House managers bring up,” said Naughton. “The outcome isn’t in doubt, so it’s their job to establish some type of plausible narrative that helps their client since it doesn’t look like Democrats can get a conviction at this point.”