It’s an approach that former President Donald Trump has privately decried as “boring” and insufficient late last month, according to a person directly familiar with the matter, but in filings on Tuesday, it was clear that his latest impeachment defense wants to play it safe. Or, at least less recklessly than Trump has urged.
In preparing for his second Senate impeachment trial, Trump’s advisers and lawyers have told him that keeping their focus on legal arguments concerning free speech and constitutional issues, rather than making—as the ex-president has wanted—Trump’s false claims of massive, pro-Biden election fraud, would be the best bet for acquittal. On Capitol Hill, Trump’s staunchest allies have urged the same.
“That’s not a winning argument,” Sen. Lindsey Graham (R-SC) said of the former president’s preferred strategy.
Other close Trump advisers have repeatedly explained to him that by focusing on the conspiracy theories that the election was stolen, he would be mounting a weaker legal defense and that it would also just remind people why Trump was on trial in the Senate and could make a bad situation worse. “Even [some of the former] president’s greatest loyalists can see, and have told him, that picking at that wound right now could be disastrous,” said one source close to Trump, acknowledging the potential for further violence or instigation. Trump was impeached for a second time over his role in instigating the bloody MAGA riot at the U.S. Capitol on Jan. 6.
Still, Trump has grilled his associates over and over again on why these groundless claims of a rigged election shouldn’t be incorporated into his defense once the trial commences, people with knowledge of the matter say.
In recent weeks, the former president’s urge to pick at that scab is one of the reasons his team has had some difficulty assembling a new legal defense and attracting talent. High-profile lawyers in the Trump orbit, including veterans of his White House or members of his first impeachment-trial defense, had declined offers from Trump to come aboard this time, or simply did not want their name attached to the new legal strategy. In the case of Rudy Giuliani, Trump’s personal lawyer who was also a major player in whipping up the MAGA crowd on Jan. 6, he was ultimately blocked from being part of the team.
Alan Dershowitz, the celebrity attorney who served on the defense during Trump’s last impeachment trial, had been approached repeatedly by Team Trump to lead the legal team, including as recently as a few days ago when the prior team parted ways with the ex-president, according to two people familiar with the situation. Trump had been specifically requesting Dershowitz’s involvement since last month. Still, Dershowitz declined all these offers.
“I don’t want to get into details of private conversations,” Dershowitz told The Daily Beast on Tuesday.
But, he added that he “strongly” believed such a defense would be “a mistake tactically, and a mistake morally and ethically, to focus the defense on claims that the election was stolen.”
“Former President Trump might lose senators who he would otherwise get [if they did that]…And as a lawyer, I would never make those arguments because I don’t see a factual basis for them,” he continued. “It would be morally wrong for me to present that argument. I’m not criticizing lawyers who would present those arguments, but based on my set of beliefs and factual assessment, I don’t believe the election was stolen.”
But in a 14-page brief filed on Tuesday, Trump’s legal team suggested they might just pick at the wound anyway, devoting a section of their case for acquittal to defending the ex-president’s baseless, repeated claims of fraud.
The former president has not only refused to let go of the conspiracy theories pertaining to Biden’s electoral win but also regarding the deadly pro-Trump riot in Washington, D.C, as well. As of late last month, Trump was still privately insisting that there is so much, even now, that we don’t know about the mob violence and what happened that day (true), and that antifa could have been behind much of it and “framed” the Trump supporters (absolutely not true), according to two individuals familiar with the rantings and ravings.
“Why isn’t anybody investigating that??” the ex-president has recently griped, one of the sources recounted.
One Trump adviser said that they and others were relieved that he has already been banned from Twitter (permanently, the social media company said last month), so that he couldn’t fan these baseless theories and demands publicly, thus further complicating his own legal defense.
The ex-president’s closest allies on Capitol Hill are publicly, and privately, urging him to steer away from re-airing the corrosive election fraud conspiracies that fueled the Jan. 6 attack in the first place. Graham told reporters on Tuesday that he was told Team Trump is not planning to focus on the “stop the steal” claims.
Graham also said he advised Trump personally to avoid the subject during the trial. “I just think election fraud as a defense is a bad idea, but that's up to him,” said Graham, who said on the night of Jan. 6, “Count me out—enough is enough” with Trump but has since pivoted to helping him assemble his legal team and counseling him regularly on the phone.
Beyond Graham, few Republican senators seem to be so closely following the developments of the former president’s legal team. Sen. Roy Blunt (R-MO), a top ally of Senate Minority Leader Mitch McConnell (R-KY), told The Daily Beast on Tuesday that his advice is, “Don’t relitigate the election.”
“I believe that they should focus on the constitutional argument and not use it as a forum for things that won't be determined by an impeachment trial no matter what,” said Blunt.
The case sketched out by Trump attorneys Bruce Castor and David Schoen, who took over following the implosion of his prior team, largely rests on the argument that the trial of an ex-president is unconstitutional and that Trump did not incite any insurrection.
But in making that case, the lawyers cast a not-so-subtle wink toward validating the former president’s “fraud” fixations, suggesting they could make an appearance, or at least a cameo, at trial.
“After the November election, the 45th President exercised his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic ‘safeguards’ states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures,” the lawyers write. “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false.”
This assertion omits, of course, that no court of law anywhere in the U.S. found any merit to the raft of election fraud lawsuits that Team Trump put forward after Nov. 3 and that no meaningful irregularities were uncovered by state officials. Though their equivocation fuels the claim that a “reasonable jurist” would give Trump the benefit of the doubt, the majority of GOP senators have previously found Trump’s claims of fraud unpersuasive, if not dangerous.
Though that claim was buried in the Trump team brief, it was the first item that House Democrats focused on in their pushback on Tuesday afternoon. A senior aide on the impeachment team said that the passage ran “contrary to Trump’s lawyers’ public statements that they will not ‘put forward a theory of election fraud.’”
Democrats are generally bracing for a trial in which a wildcard Trump legal team spends some amount of time on the floor delving into how the election was stolen from the ex-president. Some are dreading the prospect of those conspiracies unspooling on the very same floor where, just a month ago, pro-Trump rioters who believed them took selfies and clamored for leaders’ heads.
Other Democrats are saying bring it on. "If they do try to bring into evidence these conspiracy theories, it'll happen in an adversarial setting where the House managers can rebut,” said Sen. Chris Murphy (D-CT). “I think it'll be really embarrassing to have a real-time rebuttal of all this nonsense."
"My guess,” continued Murphy, “is that his defense is going to be a shit show. And I think the only question is what kind of shit show it'll be."