When Donald Trump filed the first brief in his second impeachment trial late Tuesday, he did the one thing he shouldn’t: tell his big election lie—only bigger and more dangerous because he and his lawyers are now swearing to it.
The spirit of Trump suffused the assertions—he won, dammit, and the Senate is going to get an earful about it—couched in legalese and double negatives. The brief denied Trump sought to subvert the election results, which in any event he had the right to “suspect” weren’t valid. Whatever he said, including his speech to the patriots from the lawn behind the White House, is protected speech under the First Amendment and didn’t incite anybody anyway. Then comes a royal head-spinner: “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.” Sit down and then parse: Trump “denies” it is false to say he won “in a landslide.”
That’s circumlocutious, at best, to use a word a lawyer would charge $100 for. Trump is one headstrong client and the fool is effectively running his own defense. If the brief reads a little rough, it’s because for a period over the weekend, Trump had no lawyers at all. It’s hard to keep counsel on board when the client is determined to argue a case that’s already been repeatedly and resoundingly lost. Enter Bruce Castor, best known for refusing to prosecute Bill Cosby, and David Schoen, whose client list includes dirty trickster Roger Stone and various mobsters and almost Jeffrey Epstein, who he publicly argued couldn’t have committed suicide because he’d been so upbeat when they met in his cell.
Alan Dershowitz declined to defend Trump this time around, The Daily Beast reported Tuesday night, because he “strongly” believed that Trump’s approach would be “a mistake tactically, and a mistake morally and ethically, to focus the defense on claims that the election was stolen.” He said he “would never make those arguments because I don’t see a factual basis for them.”
But Castor and Schoen are letting him do just that: relitigate 60 court challenges expecting a different result. By following the boss’ instructions, the new crew buries the case that Trump’s previous lawyers were prevented from presenting: that there’s no reason to get to pesky facts, since it’s unconstitutional to try a former president.
That would have been a weak case but it would have eaten up the Democrats’ time without giving them an opening to show tapes of a woman beaten to death on the Capitol steps, another shot and killed, a policeman crushed in a door, another smashed with a fire extinguisher and now lying in state in the rotunda, all from violence unleashed to stop the jurors, in their own house, from certifying the 2020 results. Nothing helps a defendant with a lot to hide than diverting the jury’s attention to divining just what Alexander Hamilton meant in Federalist No. 65.
A constitutional dispute, which Trump thinks is “boring,” would also make way for high legal principle of letting things blow over. If the trial of Bill Clinton had happened right after Monica Lewinsky was detained and not seven months later when the blue dress and beret were old hat, he may well have been convicted. Right after an invader did unspeakable things at Speaker Nancy Pelosi’s desk, a shocked House Minority Leader Kevin McCarthy blurted out that the president bore responsibility for the riots. Graham told his reconvening colleagues to “Count me out. Enough is enough,” and that Trump trying to reverse the election was “the most offensive concept in the world.”
But in the blink of an eye, and consulting the polls, McCarthy was on a pilgrimage to Mar-a-Lago to beg forgiveness and Graham was recruiting legal talent and threatening to call the FBI if Democrats dare call witnesses.
And the constitutional argument Trump is ready to abandon would have been the only one that has purchase with the conscience of Mitch McConnell, who’s veered so out of character he might have gotten a diagnosis he’s got six months to live. Unlike in Impeachment One, he’s pledged to keep an open mind. He outright accused Trump of inciting a rabid mob with lies and committing impeachable offenses. For good measure, he congratulated Liz Cheney for her courage and blasted QAnon follower and Trump favorite Rep. Marjorie Taylor Greene for being a "cancer” on his party.
And the best reason for concentrating on the constitutional argument would have been to give Republicans cover for doing what they so obviously want to do, acquit the former president. Enough time has passed for them to gauge Trump’s continuing hold on his voters, and theirs. Spend too much time on what happened, from the moment Trump declared he was robbed to the riot to stop them from certifying the electoral vote, and it’s much harder to let him go free to incite, to insurrect, to run again.
At the same time, they don’t want to be exposed for being as outside the norms of rational conduct as he is. All but the most retrograde fist-bumpers and unmasked members have acknowledged that Joe Biden is president. Some celebrated it on the west side of the Capitol that two weeks earlier was left in shambles by a marauding band of Trump’s “patriots.” They vastly prefer to hide behind a lofty constitutional argument, and hope they escape a MAGA primary, than to be seen swallowing a ridiculous lie roundly rejected even by judges Trump appointed and governors he campaigned for.
Trump, off Twitter, now speaks through his lawyers. Like all his relationships, this one is defined by his rage, need to dominate, and comparisons in which he comes out ahead. If any attorney were as smart as Trump, they’d be president instead of peddling their services for chump change, one billable hour at a time. It’s the same delusion that prompts Trump to boast that he’s stronger than his generals, more surgical than his medical experts, and smarter than all of the aides who accept his assessment until they’re on their way out the door when they call him a moron, or worse. The stage was built for Joe Biden’s inauguration when Cabinet secretaries Mike Pompeo and Steve Mnuchin joined internal discussions about whether Trump’s conduct justified invoking the 25th Amendment to remove him.
Trump doesn’t have to kill all the lawyers; he’s dead to most of them. Trump pushed out an expert in election law and put Rudy Giuliani and his band of misfits in charge for his two-month tear challenging the results. Rudy would be happily adding to his losing streak if he weren’t a potential impeachment witness.
No matter the lawyers Trump hires or fires, justice is unlikely to be done by senators paralyzed by ambition—seven of whom did Trump’s bidding to halt the electoral vote count while the stench of tear gas and blood hung over the chamber. But their feckless verdict can’t reverse the one rendered on Nov. 3 or relieve Trump of the awful truth that consumes him anew every day: Biden is president and he is not.
