Feb 9, 2021
Trump Lawyer Bruce Castor Opening Statement Transcript: Trump’s Second Impeachment Trial
Bruce Castor, a member of Donald Trump’s legal team, gave an opening statement arguing against the constitutionality of Trump’s second impeachment trial on February 9, 2021. Read the full transcript of his remarks here.
Transcribe Your Own Content
Try Rev and save time transcribing, captioning, and subtitling.
Bruce Castor, Jr.: (00:01)
In our system of government and if you read the Federalist Papers, we were very fortunate because the Federalist Papers were authored as an explanation for why it is the states, the original states, should adopt the Constitution. These were persuasive documents about why the Constitution is a good thing. Because if the individual state legislatures didn’t adopt the Constitution, we would not have it. So Mr. Jay and Mr. Madison and Mr. Hamilton, they had an incentive to explain what they were thinking when they wrote it. Because they are explaining to other erudite people who represent individual states why it is that they feel that this is the right thing to do. In fact, as many of you well know, Madison had to promise that there would be a Bill of Rights immediately upon adoption or we wouldn’t have a constitution. Even then, there was horse trading going on in the legislative body of the United States.
Bruce Castor, Jr.: (01:16)
The other day when I was down here in Washington, I came down earlier in the week to try to figure out how to find my way around, I worked in this building 40 years ago. I got lost then and I still do, but in studying the Constitution in all the years I was a prosecutor where so many things depend on interpretations of phrases in the Constitution, I learned that this body, which one of my worthy colleagues said is the greatest deliberative body in the entire world and I agree, that was … That particular aspect of our government was intentionally created if you read the Federalist Papers.
Bruce Castor, Jr.: (02:08)
The last time a body such as the United States Senate sat at the pinnacle of government with the responsibility that it has today, it was happening in Athens and it was happening in Rome. Republicanism, the form of government, republicanism, throughout history, has always and without exception, fallen because of fights from within. Because of partisanship from within. Because of bickering from within and in each one of those examples that I mentioned and there are certainly others probably that are smaller countries that lasted for less time that I don’t know about off the top of my head but each one of them, once there was the vacuum created that the greatest deliberative bodies, the Senate of Greece sitting in Athens, the Senate of Rome, the moment that they devolved into such partisanship, it’s not as though they ceased to exist. They ceased to exist as representative democracy. Both replaced by totalitarianism.
Bruce Castor, Jr.: (03:42)
Paraphrasing the famous quote from Benjamin Franklin who as a Philadelphian I feel as though I can do that because he’s my founding father too, “He who would trade liberty for some temporary security deserves neither liberty nor security. If we restrict liberty to attain security, we will lose both.” Isn’t the way we have enshrined in the Constitution the concepts of liberty that we think are critical, the very concepts of liberty that drove us to separate from Great Britain, and I can’t believe these fellas are quoting what happened pre-Revolution as though that’s somehow a value to us. We left the British system. If we’re really going to use pre-Revolutionary history in Great Britain, then the precedent is we have a parliament and we have a king. Is that the precedent that we are headed for?
Bruce Castor, Jr.: (04:52)
Now it’s not an accident that the very first liberty, if you grant me that our liberties are enumerated in the Bill of Rights, it’s not an accident that the very first liberty in the first article of the Bill of Rights is the First Amendment which says Congress shall make no law abridging freedom of speech etc. Congress shall make no law. The very first one. The most important one. The ability to have free and robust debate, free and robust political speech.
Bruce Castor, Jr.: (05:41)
Something that Mr. Raskin and his team brought up is that it’s somehow a suggestion from former President Trump’s team that when various public officials were not denouncing the violence that we saw all over the summer that that was somehow … The former president equating that speech to his own. Not at all. Exactly backwards. I saw a headline, “Representative so and so seeks to walk back comments about,” I forget what it was, something that bothered her. I was devastated when I saw that she thought it was necessary to go on television yesterday or the day before and say she needs to walk back her comments. She should be able to comment as much as she wants and she should be able to say exactly as she feels. If she feels that the supporters of then President Trump are not worthy of having their ideas considered, she should be permitted to say that and anybody who agrees should be permitted to say they agree.
Bruce Castor, Jr.: (07:03)
That’s what we broke away from Great Britain in order to be able to do. To be able to say what we thought in the most robust political debate. My colleague, Mike [Vanderveen 00:07:15] is going to give you a recitation on the First Amendment law of the United States. I [inaudible 00:07:22] to your attention the analysis that he is going to give you. I don’t expect and I don’t believe that the former president expects anybody to walk back any of the language. If that’s how they feel about the way things transpired over the last couple of years in this country, they should be allowed to say that and I will go to court and defend them if anything happens to them as a result. If the government takes action against that state representative or that U.S. Representative who wants to walk back her comments, the government takes action against her, I have no problem going into court and defending her right to say those things, even though I don’t agree with them.
Bruce Castor, Jr.: (08:07)
This trial is not about trading liberty for security. It’s about suggesting that it is a good idea that we give up those liberties that we have so long fought for. We have sent armies to other parts of the world to convince those governments to implement the freedoms that we enjoy. This trial is about trading liberty for the security from the mob? Honestly, no. It can’t be. We can’t be thinking about that. We can’t possibly be suggesting that we punish people for political speech in this country.
Bruce Castor, Jr.: (09:03)
We punish people for political speech in this country. And if people go and commit lawless acts as a result of their beliefs and they crossed the line, they should be locked up. And in fact, I’ve seen some quite a number of the complaints that were filed against the people who breached the Capitol, some of them charge conspiracy. Not a single one I noticed charged with conspiracy with the 45th President of the United States, probably because prosecutors have an ethical requirement that they are not allowed to charge people with criminal offenses without probable cause. You might consider that.
Bruce Castor, Jr.: (09:51)
And if we go down the road that my very worthy adversary here, Mr. Raskin, asks you to go down, the flood gates will open. I was going to say it will, instead of flood gates, I was going to say originally it will release the whirlwind, which is a biblical reference. But I subsequently learned since I got here that that particular phrase has already been taken, so I figured I’d better change it to flood gates.
Bruce Castor, Jr.: (10:29)
But the political pendulum will shift one day. This chamber and the chamber across the way will change one day and partisan impeachments will become commonplace. You know, until the impeachment of Bill Clinton, no one alive had ever lived through a presidential impeachment, not unless some of you are 150 years old. Not a single person alive had lived through a presidential impeachment. Now, most of us have lived through three of them. This is supposed to be the ultimate safety valve, the last thing that happens, the most rare treatment, and a session where this body is sitting as a court of impeachment, among the most rare things it does.
Bruce Castor, Jr.: (11:40)
So the slippery slope principle will have taken hold if we continue to go forward with what is happening today and scheduled to happen later this week. And after we are long done here and after there has been a shift in the political winds, and after there is a change in the makeup of the United States House of Representatives and maybe a change in the makeup of the United States Senate, the pressure from those folks back home, especially for members of the House, is going to be tremendous.
Bruce Castor, Jr.: (12:21)
Because remember, the founders recognized that the argument that I started with, that political pressure is driven by the need for immediate action, because something under contemporary community standards really horrific happened, and the people represented by the members of the United States House of Representatives become incensed. And what do you do with a federal issue if you’re back in suburban Philadelphia and something happens that makes the people who live there incensed? You call your congressman.
Bruce Castor, Jr.: (13:10)
And your congressmen, elected every two years with their pulse on the people of their district, 750,000 people, they respond, and boy do they respond to you. The congressman calls you back. A staffer calls you back. You get all the information that they have on the issue. Sometimes you even get invited to submit a language that would improve whatever the issue is.
Bruce Castor, Jr.: (13:34)
Well, when the pendulum swings, perhaps the next person that gets impeached and is sent here for you to consider is Eric Holder during Fast and Furious, the Attorney General of the United States, or any other person that the other party considers to be a political danger to them down the road because of their avowed abilities and being articulate and having a resume that shows that they’re capable. I picked Eric simply because I think he’s had a tremendous career and he might be somebody that some Republican somewhere might be worried about. So maybe the next person they go after is Eric Holder.
Bruce Castor, Jr.: (14:24)
And the Republicans might regain the House in two years. History does tend to suggest that the party out of power in the White House does well in the midterm elections. And certainly the 2020 elections, the House majority narrowed and there was a gain of Republicans.
Bruce Castor, Jr.: (14:50)
So the members of the House, they have to worry about these consequences, because if they don’t react to whatever the problem of the day is, somebody in that jurisdiction there, somebody is going to say, “If you make me the congressmen, I’ll react to that,” and that means that the sitting member has to worry about it because their terms are short.
Bruce Castor, Jr.: (15:22)
And it’s not just members of the House of Representatives with their short terms. I saw on television in the last couple of days, the Honorable gentlemen from Nebraska, Mr. Sasse, I saw that he faced backlash back home because of a vote he made some weeks ago, that a political party was complaining about a decision he made as a United States Senator.
Bruce Castor, Jr.: (15:52)
You know, it’s interesting because I don’t want to steal the thunder from the other lawyers, but Nebraska, you’re going to hear, is quite a judicial thinking place, and just maybe, Senator Sasse is onto something. And you’ll hear about what it is that the Nebraska courts have to say about the issue that you all are deciding this week. There seem to be some pretty smart jurist in Nebraska and I can’t believe a United States Senator doesn’t know that.
Bruce Castor, Jr.: (16:28)
A Senator like the gentlemen from Nebraska whose Supreme Court history is ever present in his mind, and rightfully so, he faces the whirlwind even though he knows what the judiciary in his state thinks. People back home will demand their House members continue the cycle as political fortunes rise and fall. The only entity that stands between the bitter infighting that led to the downfall of the Greek Republic and the Roman Republic and the American Republic is the Senate of the United States.
Bruce Castor, Jr.: (17:18)
Shall the business of the Senate and thus the nation come to a halt, not just for the current weeks while a new president is trying to fill out his administration, but shall the business of the Senate and the nation come to a halt because impeachment becomes the rule rather than the rare exception? I know you can see this as a possibility because not a single one of you ever thought you would be doing a second impeachment inside of 13 months. And the pressure will be enormous to respond in kind. To-
Bruce Castor, Jr.: (18:01)
Responding kind to quote Everett Dirksen, “The gallant men and women of the Senate will not allow that to happen. And this Republic will endure.” Because the top responsibility of a United States Senator and the top characteristic that you all have in common. And boy, this is a diverse group, but there isn’t a single one of you who A, doesn’t consider yourself a patriot of the United States. And two, there, isn’t a single one of you who doesn’t consider the other 99 to be patriots of the United States. And that is why this attack on the Constitution will not prevail. The document that is before you is flawed. The rule of the Senate concerning impeachment documents, Articles of Impeachment, Rule 23 says that, “Such documents cannot be divided.” You might’ve seen that we wrote that in the answer. It might’ve been a little legalistic or legalese for the newspapers to opine on very much, but there is some significance.
Bruce Castor, Jr.: (19:33)
The House Managers, clever fellows that they are, they cast a broad net. They need to get 67 of you to agree they’re right. And that’s a good strategy. I would use the same strategy, except there is a rule that says you can’t use that strategy. You see Rule 23 says that, “The article of impeachment’s indivisible.” And the reason why that’s significant is you have to agree that every single aspect of the entire document warrants impeachment because it’s an all or nothing document. You can’t cut out parts that you agree with warrant impeachment and parts that don’t because it’s not divisible. It flat out says in the Senate Rules it’s not divisible.
Bruce Castor, Jr.: (20:29)
Now previous impeachments like President Clinton said, “The president shall be found guilty of high crimes and misdemeanor for engaging in one or more of the following…” And then gives a list. So you all had to do was win one, but they didn’t do that here. Has to be all or nothing.
Bruce Castor, Jr.: (20:47)
And some of these things that you are asked to consider might be close calls in your mind, but one of them is not. The argument about the 14th Amendment is absolutely ridiculous. The House Managers tell you that, “The president should be impeached because he violated the 14th Amendment.”
Bruce Castor, Jr.: (21:22)
And here’s what the 14th Amendment says, “No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”
Bruce Castor, Jr.: (22:09)
Now it doesn’t take a constitutional scholar to recognize that that’s written for people who fought for the Confederacy. Who were previous military officers or were in the governance and of the Confederacy. And it does take a constitutional scholar to require that they be convicted first in a court with due process of law. So that question can never be ripe until those things have happened.
Bruce Castor, Jr.: (22:35)
Now, if you agree with those arguments, and I know when you all get your Constitutions out and you’ll read it, and if you agree with those arguments, the suggestion that the 14th Amendment applies here is ridiculous. And if you come to that conclusion, then because the Managers have not separated out the counts, any counts within the Article of Impeachment, the whole thing falls.
Bruce Castor, Jr.: (22:59)
I didn’t write that. They are married to that. I wrote it out in individual responses because I didn’t know how to respond to the cast the wide net effort. Unfortunately, Senators sometime in the past, realized that you can’t do that because you passed a rule that says, “Hey, you can’t do that.” So that’s why it’s flawed. It’s flawed in other ways too and my colleague will we’ll explain that. I was struck. I thought that the House Managers who spoke earlier were brilliant speakers, and I made some notes and they’ll hear about what I think about some of the things they said later, when I’m closing the case, but I thought they were brilliant speakers and I loved listening to them. They’re smart fellows, but why are the House Managers afraid? And why is the majority of the House of Representatives afraid of the American people?
Bruce Castor, Jr.: (24:09)
I mean, let’s understand why we are really here. We are really here because the majority in the House of Representatives does not want to face Donald Trump as their political rival in the future. That’s the real reason we’re here. And that’s why they have to get over the jurisdictional hurdle, which they can’t get over. But that’s why they have to get over that in order to get to the part of the Constitution that allows removal.
Bruce Castor, Jr.: (24:34)
So nobody says it that plainly, but unfortunately I have a way of speaking that way. And the reason that I am having trouble with the argument is the American people just spoke and they just changed administrations. So in the light most favorable to my colleagues on the other side of the aisle here, their system works. The people are smart enough, in the light most favorable to them, they’re smart enough to pick a new administration if they don’t like the old one and they just did. And he’s down there at Pennsylvania Avenue now, probably wondering, “How come none of my stuff is happening up at the Capitol?”
Bruce Castor, Jr.: (25:26)
Why do the members of the House of Representatives and the majority of the House of Representatives, why are they afraid of the very people that sent them to do this job? The people they hope will continue to send them back here. Why are they afraid that those same people who were smart enough to pick them as their congressmen aren’t smart enough to pick somebody who is a candidate for president of the United States? Why fear that the people will all of a sudden forget how to choose an administration in the next few years?
Bruce Castor, Jr.: (26:08)
And in fact, this happens all the time when there are changes in administrations from one-term presidents to others. Well, Nixon was sort of a one-and-a-half term, but Nixon to Ford, Ford to Carter, Carter to Reagan, Bush 41 to Clinton. That happens, the people get tired of an administration they don’t want, and they know how to change it. And they just did.
Bruce Castor, Jr.: (26:41)
So why think that they won’t know how to do it in 2024, if they want to? Or is that what the fear is? Is the fear that the people in 2024 in fact will want to change and we’ll want to go back to Donald Trump and not the current occupant of the White House?
Bruce Castor, Jr.: (27:03)
… Donald Trump and not the current occupant of The White House, President Biden, because all these other times the people were smart enough to do it, choose who the president should be. All these other times, they smart enough to choose who their members of Congress were, and by the way, choose you all as well. But they’re not smart enough to know how to change the administration, especially since they just did. So it seems pretty evident to me that they do know how. It has worked 100% of the time. 100% of the time in the United States, when the people had been fed up with and had enough of the occupant of The White House, they changed the occupant of the white house. Now I know that one of the strengths of this body is it’s deliberative action. I saw Senator Manchin on the TV the other night talking about the filibuster. The main point was that Senator Manchin was explaining to those of us who don’t operate here all the time that this body has an obligation to try to reach consensus across the aisle to legitimize the decisions it makes. Obviously, he’s capable of making his own pronouncements on it, but that’s what it came across on the television. I think that that is a good way of saying why the Senate of the United States is different than other places. The Constitution is a document designed to protect the rights of the minority, not the rights of the majority. Congress shall make no law abridging all of these things. That’s because those were the things that were of concern at the time. It’s easy to be in favor of liberty, and equality, and free speech when it’s popular. I think that I want to give my colleague, Mr. Schoen, an opportunity to explain to all of us the legal analysis on jurisdiction. I’ll be quite frank with you. We changed what we were going to do on account that we thought that the house manager’s presentation was well done, and I wanted you to know that we have responses to those things. I thought that what the first part of the case was, which was the equivalent of a motion to dismiss, was going to be about jurisdiction alone. One of the fellows who spoke for the house managers, who was a former criminal defense attorney, seemed to suggest that there’s something nefarious that we were discussing jurisdiction and trying to get the case dismissed. But this is where it happens in the case because jurisdiction is the first thing that has to be found. We have counterarguments to everything that they raised, and you will hear them later on in the case from Mr. van der Veen and from myself.
Bruce Castor, Jr.: (30:49)
But on the issue of jurisdiction, the scholarly issue of jurisdiction, I’ll leave you with this before I invite David to come up and give you the area explanation. Some of this was shown on the screen, but article one, section three says, “Judgements in cases of impeachment shall not extend further than to removal from office, and disqualification to hold any office of honor, trust, profit under the United States: but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment according to the law.” So this idea of a January amnesty is nonsense. If my colleagues on this side of the chamber actually think that President Trump committed a criminal offense, and let’s understand, a high crime is a felony, and a misdemeanor is a misdemeanor. The words haven’t changed that much over time. After he’s out of office, you go and arrest him.
Bruce Castor, Jr.: (32:09)
So there is no opportunity where the President of the United States can run rampant in January at the end of his term and just go away scot-free. The Department of Justice does know what to do with such people, and so far, I haven’t seen any activity in that direction. Not only that, the people who stormed this building and breached it were not accused of conspiring with the President. But the section I read, judgment, in other words, the bad thing that can happen, the judgment, in cases of impeachment, i.e., what we are doing, shall not extend further than removal from office. What is so hard about that? Which of those words are unclear, ” Shall not extend further than removal from office?” President Trump no longer is in office. The object of the Constitution has been achieved. He was removed by the voters.