Trump’s Impeachment Defense Raises Flags for Legal Experts

Fueling anger within his base and likely putting Republican senators in a bind, former President Donald Trump insists on making his refuted claims of election fraud a central focus of his impeachment trial.  

A protester carries a banner of the Proud Boys, a far-right group, in front of the Oregon State Capitol in Salem on Sept. 7, 2020. (AP Photo/Andrew Selsky)

WASHINGTON (CN) — Securing new counsel with only a week to go before his second impeachment trial gets underway, former President Donald Trump’s focus on relitigating the 2020 election has drawn alarm from legal experts.

“I wouldn’t make that argument,” said Jared Carter, an assistant professor of law at Vermont Law School, referring to reports that Trump pulled in new attorneys Sunday night because his last team refused to hinge the case on so-called theft of the 2020 election. 

“It’s a bad legal strategy,” added Carter. “The much stronger argument is that the Senate doesn’t have the constitutional authority.”  

With Trump accused of having incited the Jan. 6 insurrection at the U.S. Capitol — a mob scene that left four rioters and one Capitol police officer dead while Congress was certifying the results of the 2020 election — Trump’s original five attorneys from South Carolina were said to be focused on the definition of “incitement” and the legality of impeaching a president who is no longer in office.

Reports emerged this weekend that the original team and Trump abruptly parted ways because of Trump’s insistence that they focus on his false claims of election fraud, despite those claims having been thrown out by his own Justice Department and multiple courts, some of which included judges he had put on the bench over the last four years.

Legal experts are saying that Trump’s strategy will only stoke already high tensions and perhaps incite additional violence by pro-Trump extremists.

Carter said the move is also unlikely to curry much favor in a Senate that is likely sick of hearing fringe theories about election fraud.

Last week, 45 Republican senators voted for a motion that claims that the impeachment trial is unconstitutional because Trump is no longer in office. Now that this claim will no longer be the defense’s main strategy, some senators may have to re-think their vote. 

“I’m sure that there are a lot of Republican senators who when they heard about his strategy felt sick to their stomachs,” said Lawrence Douglas, a law professor at Amherst College. “I don’t think they want to see their vote as a referendum on the claim that the election is rigged. It’s almost as if Trump has created this test of loyalty. He doesn’t want them to have the out of just saying that impeachment of a former president is unconstitutional.” 

At the University of Missouri, however, law professor Frank Bowman said he suspects the maneuvering won’t change the outcome of many votes. 

“It will cause some squirming discomfort on behalf of the Republican senators with any remaining pretense of standards,” Bowman said. “But it’s not likely to change the outcome of the impeachment vote.”

Looking at the broader picture, Bowman predicts that the strategy will only further radicalize the Republican base. 

“This will hurt the more general project of trying to run the Republican Party as a moral, coherent political entity,” Bowman said. “Trump is standing up and insisting that being a Republican means you have to back The Big Lie and no other position is acceptable. If he persists in this position, he is continuing to support a call for insurrection.”

Other legal experts agree that Trump’s strategy will only inflame his base and may cause violence — only days after the country’s National Terrorism Advisory System warned of the potential for violence coming from domestic extremists upset over the election.

“Assuming that his most ardent supporters follow his lead, how can we not expect additional violence?” Carter said. “It plays right into the narrative and reality of what happened Jan. 6.” 

In addition to protecting his “winner” brand, Douglas says Trump is working to keep his connection with his supporters alive.

“He has a special connection he has with his base. This connection is predicated on shared grievance and the system is rigged,” Douglas said. “If he keeps that narrative intact, he keeps alive that connection with his base.”

Trump’s two new attorneys are Atlanta-based criminal defense attorney David Schoen and Bruce L. Castor Jr., a former county prosecutor in Montgomery County, Pa., who both come to Washington with their own sets of baggage.

Castor famously dropped a 2005 prosecution of Bill Cosby that would lead to the comedian’s conviction over a decade later. He later brought an unsuccessful suit against Cosby accuser Andrea Constand for defamation.

Schoen meanwhile represented Trump ally Roger Stone on obstruction-of-Congress charges for which he was convicted in November 2019.

“I’m surprised he could find any attorneys at this point,” Bowman said. “He’s really scraping the bottom of the barrel, that’s pretty obvious.”

Schoen, who also had discussions with Jeffery Epstein about representing him days before his death, spoke to the Atlanta Jewish Times in September about his track record. 

“I represented all sorts of reputed mobster figures: alleged head of Russian mafia in this country, Israeli mafia and two Italian bosses, as well a guy the government claimed was the biggest mafioso in the world,” Schoen said.

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