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Feb. 12 updates for impeachment trial Day 4: Defense team rests their case

The House impeached Trump last month for his role in the Jan. 6 Capitol riot.
Image: Illustration shows former President Donald Trump on a teal background with a red paper tear showing the Capitol and words like \"insurrection\" and \"high crimes.\"
Watch live: full coverage of Trump's second impeachment trial on NBC News NOW.Chelsea Stahl / NBC News

Former President Donald Trump's defense team rested their case Friday after making less than three hours of arguments in his Senate impeachment trial. House Democrats took up two days, including presentations of harrowing footage of last month's Capitol riot.

The trial then moved into the question and answer phase, with members of the Senate submitted questions for both sides.

Trump's lawyers are arguing that an impeachment trial of a former president is unconstitutional — a point legal experts dispute. They also say the former president's speech at a rally that preceded the violence at the Capitol, in which he riled up the crowd with repeated false claims of election fraud, is protected by the First Amendment.

Democratic House impeachment managers made the case Thursday that the mob of Trump supporters who ransacked the Capitol believed they were doing so at his direction. The managers methodically documented how rioters echoed the exact words of Trump while they stormed the building, and how, once inside, many of them said they were acting at his behest.

Managers went on to play a series of clips of times Trump explicitly called on his supporters to commit violent acts, or expressed support for violent groups, which they said showed a "pattern and practice of inciting violence."

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House managers' team responds to Trump lawyers' claims about edited tweets and videos

A senior aide to the House managers said Trump's lawyers were wrong to accuse the managers of manipulating Trump videos and tweets. 

Trump's attorneys also took Democrats' comments out of context when playing video clips during the trial, the aide said.

"Somewhere in between repeatedly showing video of comments from Democrats cut entirely out of their context, Trump’s attorney leveled a false accusation of selective editing at the House managers, and in doing so, selectively edited the managers’ presentation to make his point," the aide said.

Attorney David Schoen, for example, claimed that the Democratic managers played a clip from Trump's Jan. 6 speech in which he told the crowd they would "walk down" to the Capitol, alleging Democrats cut off the president's comments about going "peacefully and patriotically" to make their voices heard and cheer on some members of Congress. Schoen suggested that was an attempt by Democrats to make it look like Trump had incited the crowd.

"Schoen’s statement is incorrect.  Rep. Dean showed this entire portion of President Trump’s speech —twice," of Trump saying it and also from the crowd's perspective, the aide said.

The aide also said Trump's Twitter account had been suspended, requiring them to recreate some of his tweets graphically, which led to a blue verified badge to be added erroneously to one of the images.

GOP senators appear more focused during Friday's presentations

Republicans senators appear to be more focused, with less multi-tasking much less during the defense presentation. There was some notetaking at points by GOP Sens. Pat Toomey of Pennsylvania, Rob Portman of Ohio, Ben Sasse of Nebraska, Bill Cassidy of Louisiana and Tim Scott of South Carolina during the lawyers' presentations (though not during the videos quoting Democrats talking about "fighting.") 

Someone on the GOP side also chuckled during that video when Sen. Sherrod Brown of Ohio was shown saying that the only way Stacey Abrams would lose the 2018 gubernatorial race in Georgia is if the election was stolen. 

Trial recesses for 15 minutes

Senate Majority Leader Chuck Schumer, D-N.Y., announced that they would recess for 15 minutes. 

This is the first break in the trial Friday.

Analysis: The president's speech is less protected than that of lawmakers

The Constitution specifically creates stronger protections for the speech and actions of lawmakers engaged in their duties. Contained in Article I, it is colloquially called “the speech or debate clause.”

The clause, according to the Congressional Research Service, “serves chiefly to protect the independence, integrity, and effectiveness of the legislative branch by barring executive or judicial intrusions into the protected sphere of the legislative process.” It says that members of Congress cannot be held to account for their speech or debate in any other forum but Congress.

There is no such constitutional provision protecting the president’s speech or public acts. The standard for protection of legislative speech is, therefore, higher than that of presidential speech. And, of course, the Senate is not making a law prohibiting free speech in the impeachment case.

'This is not whataboutism': Trump team replays video of Democrats in First Amendment defense

In presenting the former president's First Amendment defense, Michael T. van der Veen said Trump's rally speech on Jan. 6 "deserves full protection" under the Constitution and mocked the House managers as forming an argument based on "total intellectual dishonesty."

Van der Veen then presented a textbook slippery-slope argument — that if Trump could be convicted over his speech and actions in connection to the riot at the Capitol, no political speech would be safe, and that politicians would now face the threat of impeachment for any speech.

"You can see where this would lead," he said.

Before replaying a heavily edited clip of Democrats making incendiary remarks, van der Veen said: "This is not whataboutism."

"I am showing you this to make the point that all political speech must be protected," he said. "I did not show you the speech to balance out the speech of my client."

"All robust speech should be protected, and it should be protected evenly for all of us," he said.

Meanwhile, nearly 150 leading First Amendment lawyers and constitutional scholars from all over the political spectrum wrote a letter saying the Trump team's First Amendment argument is "legally frivolous," The New York Times reported.

"In other words, we all agree that the First Amendment does not prevent the Senate from convicting President Trump and disqualifying him from holding future office," the attorneys and scholars wrote.

Trump attorney says no evidence 2016 election was hacked. This is false.

In his defense of Trump, van der Veen also cast doubt on Russian interference in the 2016 election, a routine false claim made by Trump himself.

“The entire Democratic party and national news media spent the last four years repeating, without any evidence, that the 2016 election had been hacked,” he said. “Speaker Pelosi herself said that the 2016 election was hijacked, and that Congress has a duty to protect our democracy.”

U.S. intelligence agencies are in broad agreement that Russia interfered in the 2016 election, including breaching the Democratic National Committee and the Clinton campaign.

Democrats respond to Trump team videos

Schoen falsely portrays Democrats as supporting violent protests

Schoen showed video montages from some of the unrest that occurred during last summer's wave of racial justice protests to argue that Democrats were supportive of violence.

The Trump defense team, however, did not show any of the much more prevalent peaceful protests that unfolded across the country, which is what Democrats at the time were saying they supported. Instead, they falsely portrayed Democrats as supporting the violence that occurred.

Throughout Trump's defense so far, the former president's lawyers haven't shown clips of the violence outside the Capitol on Jan. 6 and how Trump supporters breached the Capitol. 

Fact check: Trump’s 'first two' tweets urged peace

In his defense of the president, Trump attorney Van der Veen falsely claimed that “the first two messages the president sent via Twitter once the incursion of the Capitol began were 'stay peaceful and no violence, because we are the party of law and order.'”

This is false: the president’s first tweet during the riot outside the Capitol was a video of the morning’s rally.

His second, and first after the Capitol was actually breached, was a post angrily blaming Pence for the ongoing certification.

It was more than a half hour after mobs invaded the Capitol when Trump actually wrote "stay peaceful"; an hour into the riot, Trump wrote "no violence!" 

Trump defense plays heavily edited clip of Democrats saying 'fight'

As the defense entered the meat of its argument on Friday, the former president's attorneys began playing a selectively edited video of Democrats calling on supporters to "fight" for their objectives after accusing the House managers of selectively editing Trump's words.

The clip, which went on for minutes, featured prominent Democrats talking about the need to "fight" for various policy objectives or against other efforts.

The attorneys highlighted the comments as a defense for the president's heavily scrutinized words from the rally ahead of the Capitol riot, in which he told supporters to "fight like hell."

Schoen begins his defense with some questionable claims

The former president's defense team began their presentation by accusing the House managers of taking the president out of context and misrepresenting his words, claiming there was "significant reason to doubt the evidence the House managers have put before us."

Attorney David Schoen accused the House managers of having "manipulated evidence and selectively" editing footage, though the president's defense team proceeded to play a number of selectively edited clips of past comments from Democrats.

Schoen also accused the managers of creating a false representation of the president's tweets and lamented that the president's team did not have the chance to review the evidence ahead of time, saying it amounted to a lack of due process afforded to the defense.

In one example, he said Democrats misrepresented a tweet promoted by the president in which Schoen claimed the user, an organizer of the Jan. 6 rally ahead of the Capitol riot, referenced the "calvary" — a representation of the crucifixion of Jesus — and was not simply misspelling "cavalry," which was how the managers interpreted the tweet.

"The calvary is coming, Mr. President," Kylie Jane Kremer wrote.