Is Trump's Whataboutism Defense Enough Cover For GOP Acquittal? : The NPR Politics Podcast In a combative but brief showing, former president Trump's defense team highlighted past uses of fight metaphors by Democratic politicians to suggest the president's rally speech didn't incite the insurrection.

The lawyers also alleged that House Democrats failed to meet various legal standards in their pursuit of conviction — standards that hold little relevance to the political process of impeachment.

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This episode: White House correspondent Scott Detrow, congressional editor Deirdre Walsh, and national justice correspondent Carrie Johnson.

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Is Trump's Whataboutism Defense Enough Cover For GOP Acquittal?

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Is Trump's Whataboutism Defense Enough Cover For GOP Acquittal?

Is Trump's Whataboutism Defense Enough Cover For GOP Acquittal?

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(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

SCOTT DETROW, HOST:

Hey there. It's the NPR POLITICS PODCAST. I'm Scott Detrow. I cover the White House.

DEIRDRE WALSH, BYLINE: I'm Deirdre Walsh, congressional editor.

CARRIE JOHNSON, BYLINE: And I'm Carrie Johnson, national justice correspondent.

DETROW: And all three of us sat through seven hours of an impeachment trial today. How's everybody doing?

WALSH: Wide awake.

JOHNSON: Hanging in.

DETROW: A lot happened today, and we're going to talk about all of it. Let's start with President Trump's defense. It really only lasted a couple of hours. That's how the day started. In response to the case against the former president that Democrats had mounted over the last few days, one of his lawyers, Michael van der Veen, mostly took the lead with arguments like this one.

(SOUNDBITE OF ARCHIVED RECORDING)

MICHAEL VAN DER VEEN: Consider the language that the House impeachment article alleges to constitute incitement. If you don't fight like hell, you're not going to have a country anymore. This is ordinary political rhetoric that is virtually indistinguishable from the language that has been used by people across the political spectrum for hundreds of years. Countless politicians have spoken of fighting for our principles.

DETROW: And he repeatedly - and I really emphasize repeatedly - burnished this argument with montages of Democratic lawmakers and officials, including President Biden, Vice President Harris, members of the House, Democratic impeachment managers, many, many, many, many others, all using the word fight.

(SOUNDBITE OF MONTAGE)

PRESIDENT JOE BIDEN: And above all, it's time for America to get back up and once again fight.

PETE BUTTIGIEG: We will fight when we must fight.

JOAQUIN CASTRO: What kind of America are we fighting for?

KAMALA HARRIS: We were born out of a fight. This is what is our fight right now.

DETROW: And, Carrie, one of these montages lasted 11 minutes and had musical scoring. From what I could deduce, I could not find the actual track, but it seemed to me almost like a generic brand version of the "Dark Knight" soundtrack. There was a lot going on there. But a lot of this boiled down to what van der Veen said at one point was kind of whataboutism, right? You know, Democrats do it, too.

JOHNSON: He said Democrats do it, too. He said this was basically the House impeachment managers attempting to criminalize political differences and rhetoric that's been used for decades. A, Scott, this is not a criminal proceeding. B, the House impeachment managers' case didn't start on January 6. It started months earlier with the runup to the election and the lies after the election, baseless claims of fraud, the exhortation to followers of Trump to stop the steal. The case that the House managers built was about much more than the words in one speech on January 6, and the defense team didn't really want to confront the runup.

DETROW: Yeah. Deirdre, I think it's fair to say that in a lot of high-profile political moments that we've covered over the last few years - you know, the Brett Kavanaugh confirmation, the first Trump impeachment hearing - it's been a pretty effective Republican rallying point to argue, well, look at what Democrats do. I mean, do you think there were a lot of Senate Republicans who were very into this argument?

WALSH: Definitely. I mean, they've been making that case, you know, going into this trial. They were citing comments that people had made over the summer. Missouri Senator Roy Blunt the other day told reporters that, you know, he was equating some of the rhetoric to some of the protests for the Black Lives Matter group. So they were definitely receptive to the argument from the Trump defense team.

DETROW: Another thing that Trump's team kept coming back to was a close focus on the January 6 speech from President Trump - the words he said, arguing he did not explicitly urge people to go attack the Capitol, also arguing about the timeline of whether or not he could have said something to cause people to do that. Bruce Castor trying to make the point that people were preparing to attack the Capitol before Trump spoke.

(SOUNDBITE OF ARCHIVED RECORDING)

BRUCE CASTOR: Given the timeline of events, the criminals at the Capitol weren't there at the Ellipse to even hear the president's words. They were more than a mile away, engaged in their preplanned assault on this very building.

DETROW: And, Carrie, the last big point of the Trump defense that I want to talk about is this First Amendment, free speech argument. We knew it was coming, so much so that House Democrats spent a good chunk of their day yesterday trying to prebut it. What did Trump's lawyers say? What did you make of it?

JOHNSON: Yeah, the Trump team basically said, listen; former President Trump did not attempt to incite this riot at the Capitol. They said that he was engaging in routine political speech, that he used the word peacefully at least once in his remarks on January 6 and that he should have First Amendment rights like anybody else.

There's a problem with that argument, Scott. It's that the president is different from anybody else, as the House impeachment managers have told us and as about 150 law professors and legal scholars who study the First Amendment, people from both political parties, have told us. Attempting to use the First Amendment as a defense in this impeachment case is, these scholars say, legally frivolous. But I think some Republican senators sitting on this jury may have bought it, even though the idea of a president who's required to take an oath to protect the Congress, to protect the American people - you know, it doesn't really apply in this setting.

DETROW: Yeah. Deirdre, this is the point in our annual podcast about impeachment trials where we make that point that this isn't a court of law. It's a political process.

WALSH: I think even though the Senate voted to proceed with the trial, saying it was constitutional, going into the trial, a lot of Republicans disagreed with that. And I think that's what they're going to hang their vote on. I mean, I think just a lot of them fundamentally don't believe that the Senate should be having a trial of a president who's no longer in office. I mean, that's the argument they made going into it. And some of them coming out of the session today repeated that argument. I mean, the manager said that argument had been decided, but they really didn't persuade a lot of Republicans on that point.

DETROW: All right, we're going to take a quick break. When we come back, we are going to try to psychoanalyze some of these swing votes on the Republican side, also known as see what we can read into the questions they asked. We're also going to talk about the question-and-answer portion that took up the afternoon of this impeachment trial.

We're back. And the Trump team's defense only lasted a couple of hours. The rest of the day was filled with the question-and-answer session, where senators wrote out questions, stood up their desk, announced they had a question, handed the question up to Patrick Leahy, the president pro tem, who then read the question, handed it to a clerk to read the question out loud. And then after all of that back-and-forth, the managers on both sides would respond to the questions.

Before we walk through what we learned from that, Deirdre, can you remind us which senators we care the most about, which senators we have questions about which way they're actually leaning here?

WALSH: I think we're looking at about half a dozen Senate Republicans, people like Maine Senator Susan Collins, Alaska Senator Lisa Murkowski, Nebraska Senator Ben Sasse, Utah Senator Mitt Romney, Pennsylvania Republican Senator Pat Toomey and Louisiana Republican Bill Cassidy. Those are the six that voted with Democrats to move forward with the trial and agreed that it was constitutional. I mean, we expected to get questions from them, and we did.

I think that after days of the senators as jurors sitting in their seats, for the most part, and listening to the presentations, the Q&A is where I think the room really revealed how partisan it was. I mean, just the tenor of the questions, you could sort of tell that a lot of them were directed toward a particular side that they agreed with. And you got a lot of sort of, like, questions written with a slant - about a, you know, snap impeachment trial was one Republican question to the managers, which was - suggested sort of what they thought of the process.

And then the questions from those key Senate Republicans revealed, you know, what they wanted to hear, the things that they didn't think that the Trump defense team, in particular, revealed during their presentations about what the president knew and when he knew it.

JOHNSON: One of the things that really struck me was some of the reaction, the demeanor of Trump's lawyers to these questions. At one point, one of the Trump lawyers even said, who asked this question? The answer was Bernie Sanders. And they kind of got into it a little bit.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED PERSON: (Reading) Are the prosecutors right when they claim that Trump was telling a big lie, or in your judgment, did Trump actually win the election?

PATRICK LEAHY: The counsel for the former president have 2 1/2 minutes.

VAN DER VEEN: My judgment? Who asked that?

BERNIE SANDERS: I did.

VAN DER VEEN: My judgment's irrelevant in this proceeding. It absolutely is. What's supposed to happen here is the article of impeachment is supposed to be...

LEAHY: The Senate will be in order.

JOHNSON: Senator Patrick Leahy of Vermont, who's presiding over these proceedings, had to give a warning about being courteous in one speech. And I thought, oh, my goodness. This is not normally how lawyers attempt to convince members of a jury in a regular court.

WALSH: Right. And, Carrie, I think some of the questions from those wavering, you know, potential Republicans to convict, he did not necessarily - he wasn't really polite or diplomatic in terms of how he answered the question in a way that would be soliciting them to vote to acquit.

DETROW: And, Carrie, one of those moments, he - van der Veen - dismissed something as hearsay, which wouldn't be out of the ordinary. But what he dismissed as hearsay was the first-person account of Senator Tommy Tuberville, who is a juror sitting there, trying to make up his mind. I mean, that's - that was kind of wild to me.

JOHNSON: Not just that, Scott, but the point - the point that was coming up there is one of the most important points in this trial. The House impeachment managers have asked repeatedly what President Trump didn't do, why he appears to have failed to act in the hours after the Capitol fell or was overtaken by these rioters and the notion that former Vice President Mike Pence was in peril, running down a back hallway with members of his family.

Senator Tommy Tuberville says he talked with President Trump during this period, and Trump tweeted something very negative about Pence lacking courage after Tuberville informed Trump that Pence had been removed from the chamber and was fleeing. This is one of the most important points of this trial, and Trump's lawyers were kind of attacking Tuberville or casting doubt on what he had told reporters about his conversations with Trump that day.

DETROW: And just saying it's not their responsibility to have that information. So, Deirdre, Senate reconvenes 10 o'clock tomorrow. What do we think happens? And do we think we end the day with a vote on this?

WALSH: It looks that way, Scott. I mean, neither side has asked for a debate or about witnesses or documents. So what they're going to do is move on to closing arguments tomorrow. They do have up to four hours, divided equally between the impeachment managers and the Trump defense team. We've already heard from one of Trump's attorneys that they plan to use about an hour of their time. So it's unclear whether the managers will use their full time. But after they finish, we will go to a vote on whether to acquit or convict former President Trump.

DETROW: Last time around, a lot of senators gave speeches ahead of that vote saying which way they were going to vote. Is that going to happen tomorrow?

WALSH: I don't think so. I think they're going to go right into the vote. There's no indication that people want to talk anymore. I mean, I was in the chamber today, and you could really see how much this is weighing on people. People are tired, and they want to move on.

DETROW: Well, reporters covering this trial are a little bit tired, too, so let's wrap up this podcast. But I do want to end on one note. As we talked about, it got a little spicy in the chamber today. The partisanship really heated up as the afternoon went on, particularly from the lawyers. At one point, Patrick Leahy had to warn the managers on both sides to basically tone it down.

But when the Q&A ended, Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell got up together and proposed that by unanimous resolution the Senate award the Congressional Gold Medal to Eugene Goodman. He is, of course, the police officer who really emerged as a hero on the 6th. You know, we knew that pretty quickly based on the way that he directed people away from the chamber. We saw that was even more of the case when the Democrats played video during their presentation showing him really, like, possibly saving Mitt Romney's life, stopping him from going one way toward the crowd, redirecting him, seeing Romney and him run off.

So he came into the chamber. He got a sustained standing ovation. And it was like - it was possibly the only nice moment that happened this week. This has been a hard trial to watch, but that was a really nice moment.

(SOUNDBITE OF ARCHIVED RECORDING)

CHUCK SCHUMER: Here in this trial, we saw new video, powerful video showing calmness under pressure, his courage in the line of duty, his foresight in the midst of chaos and his willingness to make himself a target of the mob's rage so that others might reach safety. Officer Goodman is in the chamber tonight. Officer Goodman, thank you.

WALSH: It was a rare bipartisan moment.

JOHNSON: Yeah, I'm thinking of the 140-odd members of the Capitol Police and the Metropolitan Police Force here in Washington who suffered injuries, sometimes very serious injuries, and, you know, Officer Brian Sicknick, who died after being on duty that day.

DETROW: That video of the attacks on some of the police officers and hearing them on the scanner were - it was probably the hardest evidence to absorb. So this was a nice moment to end Friday's proceedings.

The Senate will be back at 10 o'clock tomorrow morning. We will be covering it live on your public radio station and on npr.org. And at the end of the day, whether there is a vote or whether this trial goes into Sunday, we will be here in your podcast feeds telling you what happened. I'm Scott Detrow. I cover the White House.

WALSH: I'm Deirdre Walsh, congressional editor.

JOHNSON: And I'm Carrie Johnson, national justice correspondent.

DETROW: Thanks to both of you. Thanks to everybody who edits our podcast and produces our podcast. And thank you for listening to the NPR POLITICS PODCAST.

(SOUNDBITE OF THE BIGTOP ORCHESTRA'S "TEETER BOARD: FOLIES BERGERE (MARCH AND TWO-STEP)")

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