FACT CHECK
Trump’s Lawyers Repeated Inaccurate Claims in
Impeachment Trial
The three members of the former president’s legal team
made a number of misleading or false claims about the events of Jan. 6, antifa,
the impeachment process and voter fraud.
Linda Qiu
By Linda Qiu
Feb. 12, 2021
As they mounted their defense of the former president
on Friday, Donald J. Trump’s lawyers made a number of inaccurate or misleading
claims about the Jan. 6 riot at the Capitol, Mr. Trump’s remarks, the
impeachment process and 2020 election. Many claims were echoes of right-wing
talking points popularized on social media or ones that were spread by Mr.
Trump himself.
Here’s a
fact check.
Mr. Trump’s
lawyers were misleading about what happened on Jan. 6.
WHAT WAS
SAID
“Instead of
expressing a desire that the joint session be prevented from conducting its
business, the entire premise of his remarks was that the democratic process
would and should play out according to the letter of the law.” — Michael van
der Veen, lawyer for Mr. Trump
False. In his
speech on Jan. 6 and before, Mr. Trump repeatedly urged former Vice President
Mike Pence to reject the certification of the Electoral College votes, saying
Mr. Pence should “send it back to the States to recertify.” Mr. Trump continued
his speech on Jan. 6 saying he was “challenging the certification of the
election.”
WHAT WAS
SAID
“Far from
promoting insurrection of the United States, the president’s remarks explicitly
encouraged those in attendance to exercise their rights peacefully and
patriotically.” — Mr. van der Veen
This is
exaggerated. Mr. Trump used the phrase “peacefully and patriotically” once in
his speech, compared with 20 uses of the word “fight.”
WHAT WAS
SAID
“As
everyone knows, the president had spoken at hundreds of large rallies across
the country over the past five years. There had never been any moblike or
riotous behaviors.” — Mr. van der Veen
This is
misleading. While no other Trump rally has led to a siege of the Capitol, there
have been episodes of violence, sometimes encouraged by the president. Less
than two months before the riot on Jan. 6, Mr. Trump waved to supporters who
had gathered in Washington to protest his election loss and who later violently
clashed with counterprotesters. Previously, other supporters had attacked
counterprotesters, and in one case a BBC cameraman, at several Trump rallies.
Mr. Trump called one victim “disgusting” and offered to pay the legal fees of a
supporter who had punched a protester.
WHAT WAS
SAID
“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.” — Bruce L. Castor Jr., another
lawyer for Mr. Trump
This is
misleading. It is true that the Capitol was first breached before Mr. Trump had
concluded his remarks, but this does not rule out the possibility that some
rioters were inspired by his speech. In fact, several have said that they were.
For
example, Robert L. Bauer, who had attended Mr. Trump’s rally on Jan. 6 and
entered the Capitol, told law enforcement that when Mr. Trump told the crowd to
march to the Capitol (about 16 minutes
into his speech), many heeded those words. Mr. Bauer “reiterated that he
marched to the U.S. Capitol because President Trump said to do so,” according
to a criminal complaint.
Mr.
Castor’s reasoning that Mr. Trump could not have incited the crowd to riot
because the siege was preplanned also ignores an argument that House managers
had made this week: Mr. Trump had spent months trying to invalidate the results
of the election and encouraging his supporters to act.
WHAT WAS
SAID
“At no
point was the president informed the vice president was in any danger.” — Mr.
van der Veen
This is
disputed. Comments by Senator Tommy Tuberville, Republican of Alabama, suggest
otherwise. This week, Mr. Tuberville recounted that he and Mr. Trump had spoken
just as the Capitol was breached before the phone call was cut short.
“I said
‘Mr. President, they just took the vice president out, I’ve got to go,’” Mr.
Tuberville said.
They made
inaccurate references to antifa, left-wing protests and the 2016 election.
WHAT WAS
SAID
“One of the
first people arrested was the leader of antifa.” — Mr. van der Veen
This is
misleading. Mr. van der Veen was most likely referring to John E. Sullivan, a
Utah man who was charged on Jan. 14 with violent entry and disorderly conduct.
Mr. Sullivan, an activist, said he was there to film the siege. He had
previously referred to antifa — a loosely affiliated group of antifascist
activists that has no leader — on social media, but he has repeatedly denied
being a member of the movement.
The F.B.I.
has said there is no evidence that supporters of the antifa movement had
participated in the Capitol siege.
WHAT WAS
SAID
“As many
will recall, last summer the White House was faced with violent rioters night
after night. They repeatedly attacked Secret Service officers, and at one point
pierced a security wall, culminating in the clearing of Lafayette Square.” —
Mr. van der Veen
False. This
timeline is wrong. Law enforcement officials began clearing Lafayette Square
after 6 p.m. on June 1 to allow Mr. Trump to pose with a Bible in front of a
church, not because of a breach. Additional security barriers were installed
after those events, according to local news reports and the National Park
Service.
WHAT WAS
SAID
“The entire
Democratic Party and national news media spent the last four years repeating
without any evidence that the 2016 election had been hacked.” — Mr. van der
Veen
False.
United States intelligence agencies concluded years ago that Russia had tried
to interfere in the 2016 election. The Republican-led Senate agreed last year
that Russia had disrupted that election to help Mr. Trump.
They
mischaracterized the impeachment process.
WHAT WAS
SAID
“The House
waited to deliver the articles to the Senate for almost two weeks, only after
Democrats had secured control over the Senate. In fact, contrary to their claim
that the only reason they held it was because Senator McConnell wouldn’t accept
the article, Representative Clyburn made clear they had considered holding the
articles for over 100 days to provide President Biden with a clear pathway to
implement his agenda.” — David I. Schoen, another lawyer for Mr. Trump
This is
misleading. Democrats had considered delivering the article of impeachment
earlier, but Senator Mitch McConnell of Kentucky, then the majority leader,
precluded the possibility. In a letter on Jan. 8, he informed Republican
lawmakers that the Senate was in recess and “may conduct no business until Jan.
19.”
Representative
James E. Clyburn, Democrat of South Carolina, suggested withholding the
articles longer after Mr. McConnell made his timeline known. In an interview
with CNN, Mr. Clyburn suggested Mr. McConnell was “doing what he thinks he
needs to do to be disruptive of President Biden,” but Democrats might respond
to that tactical delay with one of their own to “give President-elect Biden the
100 days he needs to get his agenda off and running.”
WHAT WAS
SAID
“Our
Constitution and any basic sense of fairness require that every legal process
with significant consequences for a person’s life, including impeachment,
requires due process under the law, which includes fact-finding and the
establishment of a legitimate, evidentiary record. Even last year, it required
investigation by the House. Here, President Trump and his counsel were given no
opportunity to review evidence or question its propriety.” — Mr. Schoen
This is
misleading. The point about lack of “due process” is one that Mr. Trump’s
lawyers and supporters had argued during his first impeachment and one that law
scholars have dismissed.
There are
no “enforceable rights” to due process in a House inquiry, and while those
rights exist in the Senate trial, they are limited, said Frank O. Bowman III, a
law professor at the University of Missouri and an expert on impeachment.
“One
justice suggested something like that if it were found that the Senate was
deciding cases on a coin flip, that might violate due process,” Mr. Bowman
said. “Anything short of that, basically court’s not going to get involved.”
Moreover, a
senior aide on the House impeachment team said that the Trump legal team was
given the trial material, including all video and audio footage, before the
start of the proceedings.
They
repeated Mr. Trump’s false claims about voter fraud.
WHAT WAS
SAID
“Based on
an analysis of publicly available voter data that the ballot rejection rate in
Georgia in 2016 was approximately 6.42 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 0.4 of 1 percent, a drop-off from
6.42 percent to 0.4 percent.” — Mr. Castor
This is
misleading. Georgia elections officials have repeatedly debunked this claim,
which conflates the overall rejection rate for mail-in ballots in 2016 to the
rejection rate specifically for signature mismatch in 2020. (Ballots can also
be rejected for arriving late or not having a signature, among other reasons.)
In 2016,
Georgia rejected about 6.4 percent of all returned mail-in ballots and 0.24
percent of those ballots because of signature-matching issues. It is unclear
what the 0.4 percent refers to, but in both 2018 and 2020, Georgia rejected
0.15 percent of mail-in ballots because of signature-matching issues.
WHAT WAS
SAID
“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?” — Mr. Castor
This is
misleading. Contrary to Mr. Trump’s belief and Mr. Castor’s repetition of it,
Georgia does verify signatures. Georgia’s Republican secretary of state noted
that the state trained officials on signature matching and created a portal
that checked and confirmed voters’ driver’s licenses. In a news conference last
month debunking Mr. Trump’s claims, Gabriel Sterling, a top election official
in Georgia, explained that the secretary of state’s office also brought in
signature experts to check over 15,000 ballots. They discovered issues with
two, and after further examination, concluded that they were legitimate.
“Shockingly,
the disinformation continues,” Mr. Sterling tweeted during the trial.
Nicholas Fandos contributed reporting.
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