In his first impeachment trial, former President Donald Trump drew on the White House's cadre of lawyers and some of the biggest names in conservative legal circles to defend him. This time around, things are different. And if the first legal brief his hastily assembled team filed is any indicator, this is not going to be a smooth ride for Trump.
I'll admit that I was worried about getting through Trump's defense brief in time to write this column. After all, last year's initial defense filing was an exacting, professional work, spanning 171 pages with dense appendixes. I needn't have been concerned. Trump's current defense is 14 pages of circuitous logic and rambling paeans to America. It also misspells "United States" on the first page.
After the Jan. 6 riots at the U.S. Capitol that he set into motion, Trump struggled to find lawyers willing to take his case. Former White House counsel Pat Cipollone was a hard pass after months of wrangling with Trump's conspiracy-minded allies over the election results. Jay Sekulow, who was the lead outside counsel during last year's trial, was also a no. Rudy Giuliani reportedly wanted the gig, but thankfully that trial balloon was popped fast.
Then, last week, after a set of lawyers was finally nailed down, they all abruptly resigned. Rather than focus on the argument that Senate Republicans have latched onto — that the trial is moot because Trump is no longer in office — the former president wanted them to argue that he really did win the election.
On Sunday, just a week ahead of his trial and less than two days before the first legal briefs were due, Trump managed to find two legal eagles to represent him: David Schoen and Bruce Castor. Neither of them is going to be winning awards from the American Bar Association (or the Federalist Society, for that matter) any time soon.
Schoen, who Trump's office says was already working with the former president, was already a member of Trumpworld thanks to his work defending GOP operative Roger Stone in court. Stone, you may recall, lied to the FBI and may have served as a link between the Trump campaign and WikiLeaks in 2016. (His conviction was overturned with a presidential pardon in December.)
Schoen also once penned an op-ed rejecting the Mueller report's findings before they were released. (I've read the whole thing several times and have yet to come away with anything besides vague accusations of political bias.)
Trump’s current defense is 14 pages of circuitous logic and rambling paeans to America. It also misspells “United States” on the first page.
Castor, meanwhile, is a former district attorney from Pennsylvania best known for his decision not to prosecute Bill Cosby in 2005. His fellow Pennsylvanians found the decision confusing, according to The Philadelphia Inquirer, as he hadn't really been in Trump's orbit. But like Trump, "Castor — known for his confident swagger around Montgomery County courthouse in his trademark pinstripe suits and cowboy boots — has a penchant for the flamboyant side of politics and what makes good TV."
Trump's new defense argument, ironically enough, boils down to exactly what his last team wanted to argue. At five separate points the brief insists that "the current proceeding before the Senate is void ab initio as a legal nullity patently contrary to the plain language of the Constitution" because Trump is no longer in office.
It's a perfectly valid defense, though in my and many other people's opinions an incorrect one. Just last week, 45 Republican senators voted to debate the constitutionality of the trial with an aim to dismiss it.
Schoen and Castor’s denial that “Trump made any effort to subvert the certification of the results of the 2020 presidential election” is outright laughable.
Beyond that, though, the defense the brief mounts can be generously described as spurious. It claims that at his rally Jan. 6, Trump was just exercising his right to free speech, and it attacks the House for violating his freedom of speech in passing an article of impeachment against him.
It also claims that any conviction in the Senate of Trump as a "private citizen" would count as a bill of attainder, aka a law passed specifically to punish or target a person or group without trial. (In other words, the framers just accidentally made it possible to violate the Constitution in upholding the Constitution, in the defense's view.)
Both of those claims are weak. But Schoen and Castor’s denial that “Trump made any effort to subvert the certification of the results of the 2020 presidential election” is outright laughable. The many efforts were, in fact, well documented. Not only was there the call with Georgia's secretary of state, which Trump's lawyers admit was legit, but in his speech ahead of the riot he yet again falsely insisted that Vice President Mike Pence could throw the election his way, whipping up the crowd in the process.
But where the lawyers must have really won brownie points was when they refused to shoot down Trump's claim that the election was rigged:
It is admitted that President Trump addressed a crowd at the Capitol ellipse on January 6, 2021, as is his right under the First Amendment to the Constitution and expressed his opinion that the election results were suspect, as is contained in the full recording of the speech. To the extent Averment 5 alleges his opinion is factually in error, the 45th President denies this allegation.
As if that weren't enough, as an encore, the lawyers defended the entire Trump presidency. "It is denied he betrayed his trust as President, to the manifest injury of the people of the United States," Castor and Schoen wrote. "Rather, the 45th President of the United States performed admirably in his role as president, at all times doing what he thought was in the best interests of the American people."
I'm not saying that this won't play well for enough of the 50 Republican members of the Senate to acquit Trump. It very well might when presented next week. I'm just saying that in comparison to the House managers' planned prosecution, it's a bit like putting the Michael Jordan-era Chicago Bulls up against the Michael Jordan-era Washington Wizards.
Look, I don't know what Trump is paying these two — given his track record, probably not much or nothing at all once the bill comes due. But if that's the case, well, I can say he got his money's worth with this one.
