Trump Lawyer Bruce Castor Argument Transcript February 12: Trump's Second Impeachment Trial

Bruce Castor: (00:06) Mr. President- Mr. President: (00:07) Mr. Counselor. Bruce Castor: (00:08) Members of the Senate, good afternoon. It has been my great privilege over the past couple of weeks to lead this outstanding team of lawyers and dedicated professionals in the defense of the 45th president of the United States. One of the most difficult things in leading such a talented group is deciding who's responsible for what and the strategy and the order in which we will present our evidence. And you have heard from Mr. Van Der Veen and Mr. Sean on the importance of the First Amendment and the importance of due process of law. And because I had the opportunity to set out the schedule, I decided that I would take the last substantive part of the case for myself. You can take that two ways. The first perhaps is the best and that would be that it's almost over. The second is that perhaps you have to wait another hour for it to be over. The reason why I chose this section and believe me, it was a very difficult decision to make because I thought that the other arguments presented by Mr. Sean and Mr. Van Der Veen were outstandingly researched, thoroughly vetted, and wonderfully and articulately presented by them. But the critical issue in this case is the very narrow issue that is charged against the 45th president. And that issue is did the 45th president engage in incitement of they continue to say insurrection? Clearly there was no insurrection. Insurrection is a term of art. It's defined in the law. It involves taking over a country, a shadow government, taking the TV stations over, and having some plan on what you're going to do when you finally take power. Clearly, this is not that. What our colleagues here across the aisle meant is incitement to violence, to riot. Bruce Castor: (02:44) So the word incitement is the critical case and the critical issue in the case. Now, the first time that you heard from us, I told you that you would never hear from side that what happened on January 6th was anything other than horrific and that the 45th president of the United States and his lawyers and his entire team adamantly denounce that violence by those criminals that occurred in this very chamber, this very building. There was a reason why we started our presentation back on Tuesday in that way because I did not want the Senators to consider that there was any challenge to that particular fact. And yet the House managers, knowing it was not contested at all, chose to spend 14 plus hours showing you pictures of how horrific the attack on the United States Capitol was. They spent no time at all in connecting legally the attack on the Capitol to the 45th president of the United States, which is the only question that needs to be answered is was Donald Trump responsible for inciting the violence that came to this building on January 6th? Bruce Castor: (04:43) Now, by any measure, President Trump is the most pro-police, anti-mob rule president this country has ever seen. His real supporters know this. He made it clear throughout his presidency. He made it clear during the violence this past summer. He made it clear on January 6th, but politics changes things. Politics has created and interposed an element that should not be here. It is interposed the element of hatred and the political world changes when hatred becomes part of the dynamic. As we wrote in our answer to the original charging document and I hope that this is a phrase that lives on long after we are all departed and that I hope someday this becomes the mantra by which all of us operate who work for the benefit of the public, that political hatred has no place in the American justice system and most certainly no place in the Congress of the United States. To illustrate the contrast that I'm speaking of, we have a video. Trump: (06:37) I am your president of law and order and an ally of all peaceful protesters. Biden: (06:43) The vast majority of the protests have been peaceful. Trump: (06:49) Republicans stand for law and order and we stand for justice. Speaker 1: (06:54) I just don't even know why there aren't uprisings all over the country and maybe there will be. Trump: (06:58) My administration will always stand against violence, mayhem, and disorder. Speaker 2: (07:03) There needs to be unrest in the streets for as long as there's unrest in our lives. Trump: (07:07) I stand with the heroes of law enforcement. Speaker 3: (07:17) And we push back on them and you tell them they are not welcome anymore, anywhere. Trump: (07:17) We will never defund our police. Together we will ensure that America is a nation of law and order. Biden: (07:25) If we were in high school, I'd take you behind the gym and beat the hell out of them. Speaker 4: (07:27) But I think you need to go back and punch him in the face. Speaker 5: (07:30) I feel like punching him. Trump: (07:32) We just want law and order. Everybody wants that. Speaker 6: (07:34) I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. Trump: (07:45) We want law and order. We have to have law and order. Speaker 7: (07:47) Show me where it says that protests are supposed to be polite and peaceful. Trump: (07:51) We believe in safe streets, secure communities, and we believe in law and order. Bruce Castor: (07:59) Is there truly anyone in this chamber who disagrees with the words spoken by President Trump on that video? Surely not. Surely not. This contrast and in this context, I asked you to keep that in mind. My colleagues here, actually my colleague here, Mr. Raskin hopes that you don't. They have used selective editing and manipulated visuals to paint a picture far different from this truth. Make no mistake and I will repeat it now and anytime I'm ever asked, January 6th was a terrible day for our country. The attack on this building shocked us all. President Trump did not incite or cause the horrific violence that occurred on January 6th, 2021. They know that. We know the president did not incite the riot because of his plain words that day as Mr. Van Der Veen elucidated on a few moments ago. We know the president could not have incited the riots because of the timeline of the events of that day. Bruce Castor: (09:25) We heard a great deal from the House manager about their prosecutorial bonafides and their ability to analyze evidence, apply it to statutes, use timelines, and figure out what happened based on circumstantial evidence and direct evidence and testimony and forensic analysis. I can't recall any of the House managers who got up and didn't make some reference to prosecutorial bonafides. Well, I spend more than three decades locking up killers and I do know a little bit about applying the facts to the law. We know that the president would never have wanted such a riot to occur because his longstanding hatred for violent protestors and his love for law and order is on display, worn on his sleeve every single day that he served in the White House. Bruce Castor: (10:25) But if we're going to apply the facts to the statute, it has to be done systematically. It has to be done with precision the way the court would expect us to do that. Let's look at the letter of the law. Again, Mr. Van Der Veen gave you an overview of the Brandenburg case and some of the related cases. You notice that when Mr. Van Der Veen listed the elements that he took verbatim or close to verbatim right out of Vandenberg, they bore no reference whatsoever to the elements that were flashed up by... Bruce Castor: (11:03) ... who were no reference whatsoever to the elements that were flashed up by the Democrat managers the other day repeatedly. He actually used the Supreme Court's case. He did make it up. Let's look at the letter of the law. The Supreme Court of the United States over 50 years ago, laid out a clear test to determine whether speech is incitement. Under that test, the Brandenburg versus Ohio test, there are three elements that must be proven. Beyond a reasonable doubt by a preponderance of the evidence, whatever the Senate considers, I suggest, beyond a reasonable doubt. First, the speech in question must explicitly or implicitly encourage the use of violence or lawless action. But here, the president's speech called for peaceful protest. Bruce Castor: (12:02) Second, the speaker must intend that his speech will result in the use of violence or lawless action. And again, as Mr. van der Veen pointed out, the president clearly deplores rioters and political violence and did so throughout his term as president and never hesitated to express his admiration for the men and women that protect this country. Finally, the third element under the Brandenburg test is the imminent use of violence. Imminent use of violence. In other words, right then. The imminent use of violence or lawless action must be the likely result of the speech. The likely result of the speech. Well, that argument is completely eviscerated by the fact that the violence was pre-planned as confirmed by the FBI, Department of Justice, and even the House managers, not the result of the speech at all. Bruce Castor: (13:08) Several of my colleagues at the House managers got up and spoke about the proceeding in the House being like a grand jury proceeding. Well, I've been in grand jury proceedings. I have run grand juries. In grand jury proceedings, you call witnesses, you hear evidence, you make transcripts, you take affidavits, you develop physical evidence, you hear reports from police officers, you hear forensic analysis from scientists. In fact, you invite the target of the grand jury to come in and testify if he or she pleases to be heard by the grand jury. Which one of those things happened in the House prior to the impeachment article? I don't believe any of them happened. So the suggestion that what happened in the House was anything at all like a grand jury investigating a case and preferring it for prosecution is complete nonsense. And if the House managers are trying to fool you about that, you must ask yourself, what else are they trying to fool you about? Let's look more closely at the president's speech. We have mentioned this line before, but it is so critical we need to talk about it again. The president asked that the attendees at his rally peacefully make their voices heard. Donald Trump: (14:53) I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard. Bruce Castor: (15:11) The managers would have you believe that the president's supporters usually follow his every word, but in this case, imputed some imaginary meaning to them while ignoring his most clear instructions. President Trump said, "Peacefully and patriotically make your voices heard," and the House managers took from that, "Go down to the Capitol and riot." So you are supposed to put yourselves in the heads of the people who here peacefully and patriotically make your voices heard and conclude that those words do not mean what the president said. More than that, the president criticized the destruction wrought by left wing anarchists and rioters. He told his supporters that they build, they don't destroy. Donald Trump: (16:14) If this happened to the Democrats, there'd be hell all over the country going on. There'd be hell all over the country. But just remember this, you're stronger, you're smarter, you've got more going than anybody and they try and demean everybody having to do with us. And you are the real people. You're the people that built this nation. You're not the people that tore down our nation. Bruce Castor: (16:42) Is it possible listening to those words in the proper cadence without them being edited or the sound changed so that they're indistinguishable or sounds as though the crowd is right there, but listening to it as you have here unedited by us, is it possible that President Trump's disdain for political violence could be any clearer to the persons listening as he was speaking? Is it possible that his words could have been misunderstood? I suggest to you that is impossible. Bruce Castor: (17:27) Now, the House managers said the president told the crowd, "You have to get out your people to fight." The House managers claim is that the president of the United States was telling the audience to get each other to physically fight. But that is not what the president said. The people who should fight, he said, were members of Congress. If they don't fight, what the president said is what should the rally attendees do? If members of Congress wouldn't fight for the principles they held dear, what was it that the president specifically told his supporters at that rally he wanted them to do? He wanted them to support primary challenges. Now, nobody in this chamber is anxious to have a primary challenge. That is one truism I think I can say with some certainty. But that's the way we operate in this country. When the people of a state want to change their representatives and their senators, they use the electoral process. President Trump told his listeners that if their members of Congress won't fight for their views, then go back home and find others that will. That's what President Trump said. The people who should fight were the members of Congress. Speaker 8: (19:15) You have to get your people to fight. He told them. Donald Trump: (19:22) You have to get your people to fight. And if they don't fight, we have to primary the hell out of the ones that don't fight. You primary... We're going to let you know who they are. I can already tell you, frankly. Bruce Castor: (19:38) It is pretty stark contrast when you watch that video, isn't it? When you see the House manager tell you... And I don't know if we're under oath here, but when I walked into this room, I sure as heck felt I was under oath and that I was speaking not only as a Senator of the United States, but before the entire world and with God watching. And a House manager got up here and told you that the president of the United States on January the 6th, 2021 told the crowd that they had to go and fight. And the implication that they wanted you to draw was that he was sending them down to Capitol Hill to go and breach the building and trash the very sacred halls of Congress. But we now know that is not at all anything near what the president said. What the president said was, if you can't get your members of Congress to do as you would like them to do, you primary them. That's the American way. The first way that the House managers presented and wanted you to conclude, that's the criminal way. But what the president said was the American way. Again, House managers manipulated President Trump's words. I can't stand here and pretend to tell you that I know every time from all those videos that the House managers manipulated what the president said put up evidence that was not with the foundation of correctness and admissibility we expect. I can't tell you that I picked up every one. I don't think Mr. van der Veen or Mr. Sean or any of the others that worked with us can tell you that. But what I can tell you is that there were an awful lot of times. And I know at least some of you were judges in previous lives, and if one of the lawyers was able to create the impression- Bruce Castor: (22:02) ... to create the impression that one side intentionally presented false or misleading evidence, that judge would give an instruction called falsus in uno, falsus in omnibus. False in one thing, false in everything. In other words, if they're trying to fool you about one thing, not only might they be trying to fool you in something else, but under that maximum of the law, you may conclude they're trying to fool you in everything else. President Trump was immediate in his calls for calm and respect for law enforcement. The House managers emphasized President Trump's tweet in the 6:00 PM hour, where he told crowds to "Go home in love and peace. And remember this day." What is it that they left out? Well, the House starts their recitation of what President Trump said as far as the aftermath of when the Capitol was breached at roughly 6:00 PM. What they don't tell you and didn't tell you, and what you probably don't know, because I think I'm the first one to say it in this forum is that 2:38 President Trump urged protestors at the U.S. Capitol to "Stay peaceful. Please support our Capitol Police and Law Enforcement. They are truly on the side of our country. Stay peaceful." Bruce Castor: (23:50) And before we run the graphic, I just want to point out to you. President Trump's speech ended at 1:11 PM. So at 2:38 PM, by the time word reaches the President that there's a problem down here, he's out urging people to support the police, stay peaceful, support our Capitol police and law enforcement, they are on the side of the country. Stay peaceful. At 3:13 PM, President Trump urged protesters at the U.S. Capitol to remain peaceful. "No violence! Remember we are the party of law and order, respect the law and our great men and women in blue." 3:13 PM. President Trump's words couldn't have incited the riot at the Capitol, the day's events make this clear. Let's walk through the actual timeline. At 11:15 AM police security camera video show crowds forming at First Street near the Capitol reflecting pool. This is a full 45 minutes before President Trump even took the stage on January 6th. Let me repeat that. Violent criminals were assembling at the Capitol over a mile away, almost an hour before the President uttered a single word on the Ellipse. Bruce Castor: (25:36) You did not hear that fact during the hours and hours of the House manager's presentation, did you? When the President spoke, what did he call for? He called for rally attendees to peacefully and patriotically make their voices heard, for them to walk down Pennsylvania Avenue to cheer on members of Congress. President Trump went on for more than an hour ending at 1:11 PM. Now why is this important? Because of all of the events that I'm about to describe, they all occurred before, before President Trump's remarks concluded. At 12:49 PM, the first barriers at the U.S. Capitol grounds were pushed over and the crowd entered the restricted area. At 11: 05 PM, Acting Defense Secretary Christopher Miller received open source reports of demonstrator movements to the U.S. Capitol. At 1:09 PM. U.S. Capitol Police Chief Stephen Sund called the House and Senate Sergeant-at-Arms telling them he wanted an emergency declared and he wanted the National Guard called. Bruce Castor: (26:55) The point, 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 pre-planned assault on this very building. This was a pre-planned assault make no mistake and that is a critical fact. Watch this. Rep. David Cicilline: (27:20) Does anyone in this chamber honestly believe that but for the conduct of President Trump, that a charge in the article of impeachment, that that attack at the Capitol would have occurred? Does anybody believe that? Speaker 9: (27:34) It was not some sort of spontaneous decision by a bunch of "protestors" to go up to Capitol Hill and storm Capitol Hill. This was all planned out. Speaker 10: (27:45) How much of it was planned? How much of this was strategized ahead of time? Speaker 11: (27:50) They are getting indications, some evidence that they've seen that indicates that there was some level of planning. Speaker 12: (27:56) There appears to be pre-meditation. Speaker 13: (27:58) F.B.I. internal report the date before the siege warning of a violent war at the Capitol. Speaker 12: (28:03) The F.B.I issued a warning of a "war at the Capitol." Speaker 14: (28:06) The F.B.I. warned law enforcement agencies about this specific attack. Speaker 15: (28:11) "Be ready to fight. Congress needs to hear glass breaking, doors being kicked in." Speaker 16: (28:17) We've developed some intelligence that the number of individuals were planning to travel to the D.C. area with intentions to cause violence. We immediately shared that information- Speaker 17: (28:26) And they pushed out that information through this JTTF structure. Speaker 16: (28:30) It was immediately disseminated through a written product and briefed to our command post operations to all levels of law enforcement. Speaker 18: (28:37) The F.B.I. says two pipe bombs discovered near the Capitol on January 6th were placed there the night before. Speaker 19: (28:43) New video appears to show a person suspected of planting pipe bombs near the U.S. Capitol the night before. Speaker 20: (28:50) The F.B.I. now says the bombs were planted the night before the Capital siege, between 7:30 and 8:30 PM. Speaker 13: (28:56) They were planted the day before. Speaker 17: (28:58) All goes to the idea of premeditation and coordination amongst individuals. Speaker 21: (29:04) This was a planned assault as if going after a cancer. Bruce Castor: (29:11) So to answer the question of the House manager, does anybody believe that this would have occurred but for the speech from Donald Trump? I do. All of these facts make clear, the January 6th speech did not cause the riots. The President did not cause the riots, he neither explicitly or implicitly encouraged the use of violence or lawless action, but in fact, called for peaceful exercise of every American's First Amendment rights to peacefully assemble and petition their government for redress of grievances. In other words, the Brandenburg Standard does not [inaudible 00:29:56] out. The House managers admitted many facts are unknown. Even Speaker Pelosi admitted not knowing the real cause of the violence when she called for a 9/11 style commission to examine the facts and causes that led to the violence. Bruce Castor: (30:25) On the screen is Speaker Pelosi's call for the 9/11 commission. Let's touch now on the second absurd and conflated allegation in the House manager's single article. President Trump's phone call to Georgia Secretary of State Ben Raffensberger surreptitiously recorded by the way, and included multiple attorneys and others on the call. Let me point out the very obvious fact that the House managers ignored. The private call that was made public by others can not really be the basis to claim that the President intended to incite a riot, because he did not publicly disclose the contents of the call. How could he have hoped to use this call to invite his followers if he had no intent to make the conversation public and indeed had nothing to do with it being secretly recorded? Bruce Castor: (31:38) The House managers told you that the President demanded that the Georgia Secretary of State "find just over 11,000 votes." The word "find" like so many others the House managers highlighted is taken completely out of context. And the word find did not come out of thin air. Based on an analysis of publicly available voter data that the ballot rejection rate in Georgia in 2016 was approximately six point four two percent. And even though a tremendous amount of new first time mail-in ballots were included in the 2020 count, the Georgia rejection rate in 2020 was a mere four tenths of one percent. A drop-off from six point four two percent to point four percent. President Trump wanted the signature verification to be done in public. How can a request for signature verifications to be done in public be a basis for a charge for inciting a riot? With that background, it is clear that President Trump's comments and the use of the word "find" were solely related to his concerns with the inexplicably dramatic drop in Georgia's ballot rejection rates. Bruce Castor: (33:03) ... dramatic drop in Georgia's ballot rejection rates. Let's examine how the word "find" was used throughout that conversation. Mr. Trump's first use of the word "find" was as follows, "We think that if you check the signatures, a real check of the signatures going back in Fulton County, you'll find at least a couple hundred thousand of forged signatures of people who have been forged." And we are quite sure that's going to happen. President Trump also used "find" as follows, "Now, why aren't we doing signature and why can't it be open to the public? And why can't we have professionals do it instead of rank amateurs who will never find anything and don't want to find anything they don't want to find anything, you know they don't want to find anything. Someday, you'll tell me the reason why, because I don't understand your reasoning, but someday you'll tell me the reason why, but why don't you want to find?" Bruce Castor: (34:20) President Trump echoed his previous sediments, again in the context of pursuing a legitimate and robust investigation into the lack of signature verification for mail-in and absentee ballots. "And why can't we have professionals do it instead of rank amateurs who will never find anything and don't want to find anything? they don't want to find anything, you know they don't want to find anything. They don't want to find, you know they don't want to find anything. Someday, you'll tell me why, because I don't understand your reasoning, but someday you'll tell me why, but why don't you want to find, we can go through signature verification and we'll find hundreds of thousands of signatures and you can let us do it. And the only way you can do it, as you know, is to go to the past, but you didn't do that in Cobb County. You just looked at one page compared to another. The only way you can do a signature verification is to go from one that signed it on November whatever recently, and compare it to two years ago, four years ago, six years ago or even one. And you'll find that you have many different signatures, but in Fulton where they dumped ballots, you will find that you have many that aren't even signed and that you have many forgeries." Bruce Castor: (35:52) Mr. Trump continued to use the word "find" throughout the conversation. Each and every other time in the context of his request that Mr. Raffensperger undertake a signature, a review of signature verifications and his concerns generally with ballot integrity and his reported electoral deficit, here are a few examples. "But why wouldn't you want to find the right answer, Brad? Instead of keep saying that the numbers are right, because those numbers are so wrong." Another example, "We think that if you check the signatures, a real check of the signatures going back in Fulton County, you'll find at least a couple hundred thousand of forged signatures of people who have been forged. And we are quite sure that's going to happen." Bruce Castor: (36:54) Moreover, there was nothing untoured with President Trump or any other candidate for that matter. Speaking with the lead elections officer of a state, that's why the Georgia Secretary of State took a call along with members of his team. One of whom decided to record it and release it to the press. The only reason this conversation is being discussed in this chamber is because once again, the media and their Democratic allies distorted the true conversation to mislead you and the American public. So we have a complete lack of evidence for the article of impeachment presented by the house managers. So why are we here? Politics. Their goal is to eliminate a political opponent, to substitute their judgment for the will of the voters. Speaker 22: (37:59) Why bother with a Senate trial of Donald Trump? He's no longer president. Speaker 23: (38:02) He'll be out of office anyway. Speaker 24: (38:04) Is it to keep him from ever running again? Speaker 25: (38:06) Make sure he can never run for office again. Speaker 26: (38:08) Keep him from running for office again. Speaker 27: (38:10) Donald Trump would not be able to run for office again- Speaker 28: (38:12) Barring him from running for office again- Speaker 29: (38:14) Disqualified from running for office. Speaker 30: (38:16) Disqualify him from ever running from office again. Speaker 29: (38:19) Disqualified from running for office again. Speaker 31: (38:22) It's about focusing that he can never run again. Speaker 32: (38:25) Remove him from ever running for office again. Speaker 33: (38:29) Never be able to run for office again. Speaker 34: (38:31) To ban former President Trump from running again. Speaker 35: (38:34) If we don't impeach this president, he will get re-elected. Bruce Castor: (38:37) (silence) The goal is to eliminate a political opponent, to substitute their judgment for the will of the voters. Members of the Senate, our country needs get back to work. I know that you know that, but instead we are here. The majority party promised to unify and deliver more COVID relief, but instead they did this. We will not take most of our time today, us of the defense, in the hopes that you will take back these hours and use them to get delivery of COVID relief to the American people. Let us be clear. This trial is about far more than President Trump. It is about silencing and banning the speech the majority does not agree with. It is about canceling 75 million Trump voters and criminalizing political viewpoints. That is what this trial is really about. It's the only existential issue before us. Bruce Castor: (40:18) It asks for constitutional cancel culture to take over in the United States Senate. Are we going to allow canceling and banning and silencing to be sanctioned in this body? To the Democrats who view this as a moment of opportunity, I urge you instead to look to the principles of free expression and free speech. I hope truly that the next time you are in the minority, you don't find yourself in this position. To the Republicans in this chamber, I ask when you are next in the majority, please resist what will be an overwhelming temptation to do this very same thing to the opposing party. (silence) Bruce Castor: (41:28) Members of the Senate. This concludes the formal defense of the 45th President of the United States to the impeachment article filed by the House of Representatives. I understand that there is a procedure in place for questions and we await them. Thereafter, we will close on behalf of President Trump.