Question from Bernie Sanders for Trump lawyer: Did Trump win the election?

A nice try by Sanders to make the defense and its supporters in the Senate squirm, knowing that Trump himself wanted to double down on voter-fraud conspiracy theories as part of this trial. Fortunately for the former president, his lawyer was smart enough to dodge it. We’re not here to debate who won the election, Michael van der Veen answered Bernie, we’re here to debate whether Trump is guilty of incitement. Which was the wise, lawyerly answer when you have a client who simply can’t bear to have the truth about his defeat uttered.

Jonathan Turley didn’t like van der Veen’s comportment there, but it makes sense in context:

None of the lawyers at this trial are trying to persuade the actual jury, only the jury at home. And in van der Veen’s case, there’s one special juror watching in Florida who relishes seeing his advocates get pugnacious on his behalf.

Van der Veen has hammered the point today that, as horrible as the attack on the Capitol was, there’s no hard evidence of Trump inciting the violence. Inasmuch as Trump never said “everyone go riot,” that’s true. But he said plenty of wink-wink stuff in this vein:

Tim Carney has a nice piece out articulating the difference between criminal incitement, which involves a particular constitutional test laid down by the Supreme Court, and incitement as an abuse of power for purposes of impeachment. “My standard for incitement is this,” he wrote of the latter. “The inciting actions must themselves be improper or blameworthy; the inciting actions must have demonstrably caused the violence; the violence must have been a foreseeable consequence of the inciting actions.” That’s an elegant common-sense approach. And Trump’s months of demagoguery, particularly what he aimed at Mike Pence over the two weeks leading up to January 6, obviously meet the standard. He pushed inane, unproved conspiracy theories to justify trying to overturn an election; his fans gathered in Washington on the 6th at his invitation believing that it was their last chance to prevent that election from being “stolen;” and it was foreseeable that they might turn desperate and violent, especially towards Pence, once they realized that Congress was prepared to certify Biden’s victory. How foreseeable? Check out the date on this tweet:

Kovler had been monitoring far-right sites like Gab and 8kun, noticing all the violent threats being made in response to Trump’s “stolen election” propaganda, and put two and two together. On the night before the riot, I myself warned in a post that the Trump tweet reprinted above amounted to a threat of violence and that he might finally stoop to actively inciting a riot. Van der Veen’s simply playing dumb and deaf to the two months that preceded the attack by focusing on the fact that Trump never gave an explicit order to attack.

And as for his point about Trump telling fans at one point during his rally speech on the 6th that they should proceed “peacefully” to the Capitol, Dem impeachment manager Jamie Raskin had the proper analogy in response:

You can’t undo two months of rhetoric about the end of America as we know it, replete with a vote-rigging conspiracy involving sinister foreign interests, by telling the mob you’ve brought to the brink of hysteria at the last second, “By the way, be peaceful.” Maybe that would get you off on a charge of criminal incitement. It certainly doesn’t get you off under Carney’s standard.

Politico has a story out tonight about chatter within the Senate Republican caucus that the number of votes to convict could range anywhere from five to 10. I seriously doubt we’ll see more than six. We know who the five likelies are: Romney, Murkowski, Collins, Sasse, and the retiring Pat Toomey. McConnell is technically in play according to his aides, but it’s hard to imagine he’d complicate the party’s midterm message by asking GOP voters nationally to make him majority leader again after he voted to convict their favorite Republican. Bill Cassidy’s vote is also presumably in play after he joined the five likelies in voting that it *is* constitutional to try a former president at the start of the trial. But Cassidy was photographed today with notes in his hand that make it appear that he’s preparing to vote for acquittal, which a senator from deep red Louisiana is all but required to do. (Cassidy’s spokesman claims he hasn’t decided yet.)

Watch this Q&A from this afternoon, though, in which Cassidy asks van der Veen if Trump was concerned for Pence’s welfare during the attack. I’m sure he was, van der Veen says — but that doesn’t fit the reporting. Trump and Pence reportedly didn’t speak once in the five days after the riot. Tommy Tuberville’s account of his phone call with Trump as Pence was being evacuated also suggests that Trump didn’t care, as he appears to have sent a tweet criticizing Pence after he knew that the VP was in danger. All van der Veen can do is mutter about hearsay, but that problem is easily solved. Put Tuberville on the stand and let him testify about what he told Trump on the phone. And then call Mike Pence himself to testify tomorrow.