Trump’s lawyers set out case for the defence

The Democrats took a little under four days to present their case for impeaching Donald Trump. His lawyers seem keen to wrap up his defence in slightly under four hours. After all, why drag things out when you know with near certainty that the impeachment is going to fail to meet the high margin of 67 votes and that there’s no way your client is going to come out of this process looking good.

The crux of Trump’s lawyers’ case was context and freedom of speech. After condemning the trial as an “unjust and blatantly unconstitutional act of political vengeance”, Michael Van der Veen argued that no reasonable person could think the speech that Trump gave to his crowd of supporters shortly before some of them stormed Congress “was in any way an incitement to violence or insurrection”.

As supposed proof that Trump was merely engaging in the fiery rhetoric all sorts of politicians indulge in, Van der Veen referred to various prominent Democrats urging their supporters to “fight” for this or that. He then accused Democrats of “manipulating evidence” by playing longer versions of the videos of Trump’s speech that Democrats played – arguing that seen at greater length Trump’s non-violent meaning and intention was clear.

It is difficult to see in what world such context helps Trump – in terms of the verdict of history. The context is Trump spent three months denying he lost the election, gave a speech urging supporters to go to Capitol Hill to “stop the steal” and told them normal rules don’t apply. They then stormed the place while his appointees delayed deploying the National Guard. When Democrats urged supporters to fight, these supporters didn’t then invade a building in Washington – some of them brandishing baseball bats and wearing body armour – and assault the police.

The freedom of speech argument also holds little water. Even in the US, which rightly takes this freedom very seriously, I would not be safe from legal consequences if I didn’t assault someone but merely told someone else to do it. True, Trump did not directly instruct his supporters to invade the Capitol but it is fairly well-established in the court that we can reasonably infer intent from circumstances and subsequent actions. If a loan shark turned up with thugs in tow and said it would be terrible if something were to happen to you, and a few hours later one of those leg-breakers were to smash up your house, the courts would come to a fairly swift and clear judgment.

Even if you think Trump’s statement and the context doesn’t meet the standard of criminal liability, impeachment isn’t a criminal procedure. It is a political judgement about whether someone has abused their office or is otherwise unfit for it due to their actions. It seems fairly clear Trump qualifies on both counts.

On this point it might also be worth noting that some of Trump’s other behaviour since the election could well merit impeachment. In particular, he looks set to face a criminal investigation over the call in which he tried to pressure the Georgia Secretary of State to “find” some votes that would hand him victory in the state.

Of course, in America’s hyper-partisan environment this matters little. Trump will soon be acquitted because there are not the votes in the Senate to convict him.

Yet, this begs the question, if this isn’t impeachable, what is?