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Fact check: Trump lawyers make multiple false claims in impeachment defense

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By Daniel Dale, Tara Subramaniam and Holmes Lybrand, CNN
Updated 10:03 PM ET, Fri February 12, 2021

(CNN) — Former President Donald Trump’s lawyers mounted an aggressive defense Friday in Trump’s second impeachment trial — and made multiple false and misleading claims to bolster their case.

Arguing that Trump did nothing to incite the insurrection at the US Capitol on January 6, the lawyers distorted the facts about both what happened that day and what happened in the past.
Here is a fact check of some of their claims:

Defense team misleadingly omits Trump remarks defending violence

    Trump lawyer Michael van der Veen highlighted comments from Democrats that he suggested had promoted or defended violence. Trump, he argued, is different than these Democrats.
    “Contrast the President’s repeated condemnations of violence with the rhetoric from his opponents,” van der Veen said. He then played a video that juxtaposed clips of Trump condemning violence, and calling himself an “ally of all peaceful protesters,” with some selectively edited clips of Democrats.
    Facts First: This argument and video were misleading by omission. Trump has indeed condemned violence and called for peaceful protest, but he has also repeatedly applauded or defended violence and aggressive behavior.
    Among other things, Trump has done the following since he launched his presidential campaign in 2015: praised a Republican congressman for assaulting a journalist; urged police officers not to worry about injuring the heads of suspects they are arresting; said he would like to punch a protester in the face; urged supporters to “knock the crap out of” any protester they saw holding a tomato; said a kidnapping plot against Michigan Democratic Gov. Gretchen Whitmer might not be an actual “problem”; approvingly told a fake story about an early 20th century US general who massacred Muslim terrorists with bullets dipped in the blood of pigs; said it was a “beautiful sight” when the authorities tossed a journalist to the ground during unrest in Minneapolis; mocked a reporter who got shot with a rubber bullet; and applauded the Trump supporters who surrounded a Joe Biden campaign bus on the highway, an incident that prompted an FBI investigation.

    Trump’s lawyer falsely claims Trump’s first two tweets during the Capitol attack urged calm

    Van der Veen claimed that “the first two messages the President sent via Twitter once the incursion of the Capitol began” urged people to “stay peaceful” and called for “no violence.”
    Facts First: This is not true.
    Trump’s “stay peaceful” tweet at 2:38 p.m. and “no violence” tweet at 3:13 p.m. were his second and third tweeted messages after the Capitol was breached, not his first. Trump’s first tweet was at 2:24 p.m.: “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!”
    Rioters had already entered the US Capitol building by the time of the Trump tweet about Pence.

    No, the media wasn’t lying that there was hacking during the 2016 election

    Van der Veen claimed that Washington officials other than Trump are the ones who used reckless and inflammatory rhetoric. He claimed: “The entire Democratic Party and national news media spent the last four years repeating without any evidence that the 2016 election had been hacked.”
    Facts First: The Democratic National Committee and the Hillary Clinton campaign were indeed hacked during the 2016 election campaign; this is a fact, not a claim made “without any evidence.” The US intelligence community, special counsel Robert Mueller and the bipartisan Senate Intelligence Committee all concluded that the Russian government was responsible for stealing and leaking internal documents and emails.
    If van der Veen was suggesting that the “entire Democratic Party and national media” spent four years falsely alleging that hackers altered actual votes or vote totals in the 2016 election, that would not be true either. We can’t speak for every word uttered by every Democrat or every journalist since 2016, but it is clearly inaccurate to say that the entire party or entire media spent four years pushing such a claim. The national discussion about hacking during the 2016 election focused on the actual, confirmed hacking that targeted the Democrats’ computer systems.

    Castor falsely claims rioters didn’t attend Trump’s DC speech

    Trump’s lawyer Bruce Castor claimed that the rioters who stormed the Capitol didn’t attend the ex-President’s incendiary speech that day, and that this proved the insurrection was a pre-planned attack that wasn’t incited by Trump.
    “Given the timeline of events, the criminals at the Capitol weren’t there at the Ellipse to even hear the President’s words,” Castor said. “They were more than a mile away, engaged in their pre-planned assault on this very building.”
    “This was a pre-planned assault,” Castor said, “make no mistake.” He also claimed this assertion was “confirmed by the FBI, Department of Justice and even the House managers.”
    Facts First: It’s false that none of the accused Capitol rioters attended Trump’s speech beforehand. And Castor is exaggerating the known facts about whether the assault was pre-planned.
    Ellipse to the Capitol
    It’s true that the timeline shows that someone who attended the entirety of the speech at the Ellipse could not have been among the very first people to breach the Capitol grounds. But that’s a much narrower claim than the one Trump’s lawyers are making.
    Court documents and video footage show that some Trump supporters did make this walk from the Ellipse to the Capitol, undermining Castor’s claims. This includes one woman who allegedly went from the Trump speech to her hotel, and then into the Capitol.
    And all of this ignores the fact that insurrectionists near the Capitol could have listened to Trump’s speech on their phones or could have been inspired by Trump’s previous rhetoric.
    Pre-planned?
    The Justice Department and FBI have accused some rioters of planning the attacks before coming to Washington, and top prosecutors have said more charges along those lines are expected. But only a handful of the 200-plus criminal cases indicate that rioters had showed up that day intending to breach the Capitol.
    Therefore, Castor cherry-picked a few unrepresentative cases from the pool of more than 215 cases to support his misleading assertion that federal investigators “confirmed” this was a “pre-planned assault.”
    In interviews with reporters and FBI investigators, some of the rioters said they came to DC for the rally and later got swept up in the crowd as it rushed the Capitol.

    No, Georgia did not see a ‘dramatic drop’ in ballot rejection rates

    As evidence of Trump’s efforts to subvert the certification of the 2020 election results, the article of impeachment cites Trump’s call with Georgia Secretary of State Brad Raffensperger where Trump asked Raffensperger “to ‘find’ enough votes to overturn the Georgia presidential election results.”
    Castor argued Trump’s use of the word “find” was “solely related to his concerns with the inexplicable dramatic drop in Georgia’s ballot rejection rates.”
    Facts First: The intent of Trump’s use of the word “find” aside, Georgia did not experience a “dramatic drop” in ballot rejection rates, according to data from the Georgia Secretary of State’s office.
    In fact, the total number of absentee ballot rejections increased in direct proportion to the number of additional votes compared to the most recent past election. But ultimately, the percentage of ballot rejections remained the same. The Georgia Secretary of State’s office noted that “the rejection rate for absentee ballots with missing or non-matching signatures in the 2020 General Election was 0.15%, the same rejection rate for signature issues as the 2018 General Election.”
    Georgia election official Gabriel Sterling reacted to Castor’s claim on Twitter Friday, stating that “shockingly, the disinformation continues.”

    Trump lawyers misleadingly use Biden comment on peaceful protest

    Trump’s lawyers argued that Democrats had taken Trump’s words out of context. Castor argued that the House managers had used “selective editing and manipulated visuals.”
    But the Trump defense team itself clearly did selectively edit its video presentations. For example, moments before this Castor complaint, he had played a video that showed then-candidate Joe Biden saying, of last year’s racial justice protests, “The vast majority of — of the protests have been peaceful.” The video then cut immediately to footage of rioting, suggesting that Biden’s claim was wrong.
    Facts First: This video cut was misleading. Biden was correct when he said that the vast majority of racial justice protests in 2020 were peaceful; he was not describing riots as peaceful. Biden has repeatedly condemned rioting.
    The video played by Castor was reminiscent of tactics used by Trump’s unsuccessful reelection campaign. Trump himself had inaccurately attempted to convince Americans that Biden had described violence as peaceful protest.

    Trump lawyers falsely claim trial violated due process

    Van der Veen argued that the impeachment process was unconstitutional, in part because it violated the due process clause.
    “The due process clause applies to this impeachment hearing and it’s been severely and extremely violated,” he said.
    Facts First: This is false. An impeachment inquiry is a political process, not a criminal case, therefore the constitutional rights of criminal defendants, such as due process, do not apply.
    The Fifth Amendment, which outlines the right to due process, states that it applies specifically to any criminal case. And as Steve Vladeck, a Supreme Court analyst for CNN and professor at the University of Texas law school, noted ahead of Trump’s first impeachment, “Impeachment is not a criminal prosecution.”
    Furthermore, William Banks, a law professor at Syracuse University, told CNN, “There is nothing in the Constitution or any law, nor any rules of the House, that prescribes a particular procedure for impeachment proceedings.”
      The Constitution details only the basis for impeachment, the potential consequences of impeachment and that the House “shall have the sole power of impeachment” while the Senate “shall have the sole power to try all impeachments.”
      This story has been updated.

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      Politics

      Biden to take first limited steps on gun control, including on ‘ghost guns’ and pistol braces

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      By Kevin Liptak, CNN
      Updated 10:57 PM ET, Wed April 7, 2021

      (CNN) — President Joe Biden will take his first, limited actions on gun control Thursday, directing his administration to tighten restrictions on so-called ghost guns and pistol stabilizing braces that allow the weapons to be used more accurately, according to a senior administration official.

      The steps — which also include nominating a gun control advocate to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives — fulfill a commitment Biden made in the aftermath of two deadly shootings last month to take “common sense” steps right away to address gun violence.
      But they fall short of the sweeping actions Biden promised as a candidate that must be passed by Congress, including a ban on assault weapons or enacting universal background checks. Senior administration officials framed the upcoming announcements as initial steps that would be followed by additional actions later on, including applying pressure on lawmakers to act.
        Biden said last month following a mass shooting in Colorado, “I don’t need to wait another minute, let alone an hour, to take common sense steps that will save lives in the future.” But he has acknowledged that passing a massive new infrastructure plan — and not new gun laws — is his top legislative priority.
          Biden will make the announcements Thursday from the White House alongside his attorney general, Merrick Garland, whose Justice Department will be responsible for drafting the proposed rules.
              The announcements will come as the President is expected to nominate David Chipman as the next director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, a White House official told CNN. Chipman is a former ATF agent who serves as senior policy adviser at Giffords, the organization led by former congresswoman Gabby Giffords, who became a gun control advocate after being shot in 2011.
              The ATF has been without a permanent director since 2015.
              Biden also plans to announce new investments in intervention programs in violence-prone communities; a directive to the Justice Department to publish model “red flag” laws for states that allow the temporary removal of guns from people deemed at high risk of harming themselves or others; and a comprehensive report on firearms trafficking.
              Taken together, the actions amount to the first real steps by Biden’s administration to combat gun violence. Inside the White House, efforts to devise executive actions have been led by White House Domestic Policy Council Director Susan Rice and Office of Public Engagement Director Cedric Richmond, administration officials and gun safety advocacy groups told CNN.
              That included meeting with some of those groups and fielding ideas for steps that Biden could take on his own. Some advocates had been clamoring for steps earlier in the administration, pointing to Biden’s pledge to prioritize gun control during his campaign.
              But initial reaction from gun safety advocacy groups Wednesday evening was positive.
              “Each of these executive actions will start to address the epidemic of gun violence that has raged throughout the pandemic, and begin to make good on President Biden’s promise to be the strongest gun safety president in history,” John Feinblatt, president of Everytown for Gun Safety, said in a statement.
              “These much-needed executive actions will start saving lives right away, and our grassroots army of nearly 6 million supporters looks forward to standing behind President Biden as he urges the Senate to follow his lead and act,” Shannon Watts, founder of Moms Demand Action, said in a statement.
              While campaigning, Biden had said he would task his attorney general with instituting better enforcement of existing gun laws as a means of slowing gun violence. He also made a campaign pledge to send $900 million for community programs meant to combat violence, something the administration is sorting out how to fulfill.
              Following last month’s shootings, Biden called on Congress to take steps like reenacting an assault weapons ban, with Vice President Kamala Harris, who argued for executive actions on the campaign trail, telling “CBS This Morning” that “if we really want something that is going to be lasting, we need to pass legislation.”
              The Democratic-controlled House passed gun legislation that would expand background checks on all commercial gun sales last month, but the bills face tougher paths in the Senate, where Democrats hold a slim 50-50 majority and would need significant Republican support to overcome a legislative filibuster.
              Biden acknowledged during a news conference that his main legislative priority was passing an infrastructure package and that he believed careful timing was key to the success of any proposed bills.
              And he has acknowledged that his political capital is limited.
              “I haven’t done any counting yet,” he said in March when asked whether he believed he had enough votes to pass significant reforms.
              As the nation’s posture on guns has evolved, Biden has been front-and-center at most every stop along the way for more than three decades, from the triumph of a 10-year ban on assault weapons in 1994 to the disappointment of a failed push for universal background checks in the wake of the Sandy Hook massacre.
                Recent shootings in Georgia and Colorado had raised the question inside the West Wing over how much political capital Biden should expend on the matter, which has so often ended in frustration.
                This story has been updated with details about Biden’s executive actions and reaction to them.

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                Virginia lawmakers OK marijuana possession starting July 1

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                By Paul LeBlanc and Kay Jones, CNN
                Updated 9:45 PM ET, Wed April 7, 2021

                (CNN) — The Virginia General Assembly on Wednesday passed a bill legalizing simple possession of marijuana, becoming the latest state to modify its laws around cannabis use and possession that disproportionately jailed Black people for nonviolent offenses.

                The new law, which goes into effect July 1, allows anyone in the state 21 or older to possess up to 1 ounce of marijuana. The law also “modifies several other criminal penalties related to marijuana, and imposes limits on dissemination of criminal history record information related to certain marijuana offenses,” according to a summary posted to the Legislature’s website.
                “Virginia led and made history once again today,” Virginia Lt. Gov. Justin Fairfax, who cast the tie-breaking vote in the state Senate, said in a tweet.
                  “I was proud to cast the tie-breaking vote to legalize marijuana and bring long overdue justice, fairness, equity and opportunity to the people of our great Commonwealth.”
                    The bill had originally passed in late February, but Democratic Gov. Ralph Northam sent it back to the Legislature with a series of revisions, including a proposal to accelerate the timeline of its enactment to this July instead of 2024.
                        Still, the measure was met with fierce opposition from state GOP lawmakers Wednesday, including Del. Chris Head, who called it a “train wreck” during a virtual House floor speech.
                        “If this policy change is to be undertaken, it has to be undertaken prudently, and I understand the enormous pressure on the majority party to make this change right now. I understand that opposing immediate legislation and legalization is going to anger many of your constituents. And I understand that taking the time to do this right might possibly even lead to charges of racism,” he said.
                        “But we have to do this right. And doing it right takes time.”
                        Legalization advocates have long touted the righting of past criminal justice wrongs, eliminating illegal market activity and generating additional tax revenue when they’ve pushed for overhauling state cannabis laws.
                        “At the end of the day, economics talk and jobs talk,” Jessica Billingsley, chief executive officer of Akerna, which makes regulatory compliance software that helps states track cannabis sales from seed to sale, previously told CNN.
                          “I truly believe we’re going to see some very meaningful and important movement coming out of this as states and governors look for a way to bolster their economy.”
                          Cannabis sales in states that have legalized the plant for medical and recreational purposes totaled about $15 billion in 2019, and are expected to top $30 billion by 2024, according to data from BDS Analytics, which tracks dispensary sales.

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                          Biden’s planned pick for ATF director a fierce advocate for gun control

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                          By Paul LeBlanc, CNN
                          Updated 9:30 PM ET, Wed April 7, 2021

                          Washington (CNN) — David Chipman, President Joe Biden’s planned nominee for director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, has a long history at the agency and sports credentials in gun control advocacy sure to excite firearm safety groups.

                          If confirmed, Chipman will lead the agency that enforces gun laws at a critical point in Biden’s early tenure, as the President looks to take fresh action on the issue in the wake of two deadly shootings last month.
                          “I don’t need to wait another minute, let alone an hour, to take common-sense steps that will save lives in the future,” Biden said last month. The President plans to announce new executive actions on guns Thursday, a person familiar with the plans said.

                            Longtime ATF special agent

                              Chipman, if confirmed, would return to the agency where he worked for 25 years as a special agent.
                                He lists “Violent Crime Reduction Strategist,” “Certified Explosives Specialist” and “Interagency Liason Specialist” among his specialties on his Linkedin profile, and Giffords notes his expertise includes ghost guns, the gun industry, law enforcement and assault weapons.
                                In the President’s first, limited actions on gun control Thursday, Biden will direct his administration to tighten restrictions on so-called ghost guns and pistol stabilizing braces that allow the weapons to be used more accurately, according to a senior administration official. Ghost guns are handmade or self-assembled firearms that don’t have serial numbers, and some can be fabricated in as little as 30 minutes using kits and parts purchased online.
                                The ATF has been without a permanent director since 2015.
                                In recent years, the bureau has become most visible in the aftermath of mass shootings around the US and at other crimes involving firearms. But the agency has a broader scope than just guns.
                                According to its website, ATF “protects our communities from violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts of arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products.”
                                “We partner with communities, industries, law enforcement, and public safety agencies to safeguard the public we serve through information sharing, training, research, and use of technology,” the bureau’s website states.

                                Gun control advocacy

                                After leaving the ATF in 2012, Chipman became a senior adviser at Everytown for Gun Safety, where he was “consulted frequently” by lawmakers considering gun control legislation, according to his Linkedin.
                                Chipman then served as senior vice president of Public Safety Solutions for almost three years before arriving at Giffords as a senior policy adviser in 2016.
                                It’s in these roles that Chipman’s voice as a fierce advocate for gun control was elevated, as he frequently wrote op-eds and made media appearances to advance the cause.
                                “As a former ATF special agent with more than 24 years of experience at the bureau, I know all too well how serious our gun violence problem is and how desperately the agency lacks for the law enforcement tools that are necessary to help curb this national epidemic,” Chipman wrote in a 2013 Politico op-ed.
                                The country’s gun safety laws, he wrote at the time, “make it all too easy for guns to fall into the wrong hands — and since Congress has failed to address these gaps legislatively, ATF must chart a new course to combat the scourge of gun violence. This requires strong leadership.”
                                More recently, Chipman voiced support for limiting high-capacity magazines in a 2019 interview with PBS NewsHour.
                                “Talking to any gun owner, a 100-round magazine is just not traditional. It’s not normal. And I can’t think of a purpose, beyond killing a lot of people, for having it,” he said. “So if the debate is, should it be 10 or what have you, it can’t be 100. And so I think there’s room where we can have progress, although we will not have perfection.”
                                  And in light of FBI records last summer showing US firearm background checks having skyrocketed during the Covid-19 pandemic, Chipman told CNN at the time: “My biggest concern involves the potential number of first time gun buyers who, before March, did not think they needed a gun.”
                                  This story has been updated with additional details Wednesday.

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                                  Andrew Giuliani, former Trump aide and son of Rudy Giuliani, says he plans for to run for governor of New York

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                                  By Devan Cole, CNN
                                  Updated 12:16 PM ET, Wed April 7, 2021

                                  Washington (CNN) — Andrew Giuliani, the son of former New York Mayor Rudy Giuliani, says he’s planning to run for governor of the heavily Democratic state next year.

                                  “I plan to run,” Andrew Giuliani, who served as an aide to former President Donald Trump, told the Washington Examiner in an interview published Wednesday.
                                  Giuliani’s gubernatorial bid could set up a high stakes, headline-grabbing showdown with Andrew Cuomo, should the embattled incumbent Democratic governor decide to seek a fourth term. But Giuliani would face a steep uphill battle in the heavily Democratic state, and his candidacy could help hand another win to the party as his proximity to Trump would likely be seen as a liability in a state where the former President is widely unpopular.
                                    “I believe I can win the race,” Giuliani told the Examiner. “I think I’m the right candidate, and this is the right time to help change New York State, and we’ve got a playbook that works.”
                                      “Outside of anybody named Trump, I think I have the best chance to win and take the state back, and I think there’s an opportunity in 2022 with a wounded Democratic candidate, whether it’s going to be Gov. (Andrew) Cuomo, whether it’s going to be a radical (attorney general), Letitia James, whether it’s going to be a no-name lieutenant governor, I think there’s a very, very real chance to win,” he said, according to the magazine.
                                            Asked if he expected Cuomo to seek reelection to a fourth term next year, Jay Jacobs, the state party chair and a close ally of the governor, demurred.
                                            “I honestly don’t know the answer to that question. I think that he’s more focused on getting through his current troubles, then seeing where he’s going to go,” he said. “These investigations are going to be critical in all of that. It’s hard to tell. I’m sure that, given his druthers, he’d like to run for reelection.”

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                                            Stephen Breyer worries about Supreme Court’s public standing in current political era

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                                            By Joan Biskupic, CNN legal analyst & Supreme Court biographer
                                            Updated 9:07 PM ET, Tue April 6, 2021

                                            (CNN) — Justice Stephen Breyer, who may be nearing the end of his Supreme Court tenure, expressed concern on Tuesday about the standing of the high court and the possible erosion of public confidence in its decisions.

                                            In an expansive, two-hour lecture at Harvard Law School, Breyer bemoaned the common practice — by journalists, senators and others — of referring to justices by the presidents who appointed them and of describing the nine by their conservative or liberal approach to the law.
                                            “These are more than straws in the wind,” the 82-year-old Breyer said. “They reinforce the thought, likely already present in the reader’s mind, that Supreme Court justices are primarily political officials or ‘junior league’ politicians themselves rather than jurists. The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences. That is not what the public thinks.”
                                              Breyer also warned against proposals to expand the size of the Supreme Court from its current nine members. Public trust was “gradually built” over the centuries, he said, and any discussion of change should take account of today’s public acceptance of the court’s rulings, even those as controversial as the 2000 Bush v. Gore case that settled a presidential election.
                                                “The public now expects presidents to accept decisions of the court, including those that are politically controversial,” he said. “The court has become able to impose a significant check — a legal check — upon the Executive’s actions in cases where the Executive strongly believes it is right.”
                                                  Some of Breyer’s most compelling opinions, it should be noted, have been written in dissent. In 2007, for example, he objected to an opinion by Chief Justice John Roberts rejecting school integration plans in Seattle and Louisville. Roberts said districts could not consider a student’s race when making school assignments to reduce racial isolation throughout the school district.
                                                  “This is a decision that the Court and the Nation will come to regret,” wrote Breyer, whose father, Irving Breyer, was a long-serving school board member in San Francisco. Breyer still wears the wristwatch his father received upon his retirement from the district. Breyer said the Roberts opinion threatened “the promise of” the 1954 Brown v. Board of Education decision.
                                                  Breyer said Tuesday that differences with his colleagues were based on their distinct views of the structure of the Constitution or how they interpreted statutes. He did not refer to instances in which his colleagues themselves have publicly questioned each other’s motives.
                                                    Breyer did allow that sometimes justices weigh public opinion or the future ramifications of a decision. And he acknowledged that the nine are products of their individual backgrounds and experiences.
                                                    Still, he said, “judicial philosophy is not a code word for ‘politics.'”

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