Shortly after he was ousted by the House of Representatives, Bloomberg reported that Trump was having “difficulty” finding a team of lawyers to administer his Senate defense. Trump’s entire first impeachment team, including Jay Sekulow and former White House attorney Pat Cipollone, turned down the opportunity to retry. Even the deadline for Trump’s long-term agreement with Pam Bondi appears to have passed. she has also signed off.
Potential attorneys are likely to feel better these days after Senate Republicans made it clear they really meant it when they first gave Trump a free pass. With 45 Republicans voting for no point in pushing the impeachment and Republicans threatening to drag the Senate into months of post-election recounting if a single witness is called, it seems like that Nobody, Absent and Nothing legal team was able to stage an adequate defense.
The problem is that Trump isn’t happy just to sit there, collect another free pass and move on. Instead, Trump has insisted on his lawyers that he wants to use the impeachment process to produce “evidence” of alleged election fraud.
In other words, Trump wants to use his impeachment process not to defend himself against charges of inciting a murderous, seditious mob, but to explain why that mob was right when it hit the Capitol in search of hostages .
That insistence is part of what made it so difficult for Trump to find legal occupation. Trump was so upset with his legal team’s reluctance to join the riot attempt that he split from five members of his legal team last week. However, the New York Times revealed that Trump had selected two new attorneys to head his impeachment team: former Pennsylvania District Attorney Bruce Castor, and David Schoen. Schoen was most recently in public as principal attorney for Roger Stone in his defense against several charges related to the Mueller investigation. That would be Stone’s loss case, in which Trump would have to pull out his pardon pen.
But as the Times now reports, that doesn’t mean Trump will follow him off a cliff just because Trump has new lawyers. Instead, the team argues that it should conduct its defense on the premise that the process itself is unconstitutional.
That claim is also wrong, but it has serious advantages when it comes to getting the results that Trump, his legal team, and the Senate Republicans want. First, it prevents Republicans from having to go through a process to determine if Trump is involved in the incitement while Trump is actively involved in the incitement. Second, Republicans can rely on technical arguments they have already put forward about the legality of post-term impeachment. It’s an argument that Republicans can vote on to acquit Trump while still claiming they’re just damned appalled about the uprising matter.
That, of course, is the whole reason why Republicans made the claim that the indictment against Trump, after deliberately allowing the clock to expire, is unconstitutional. It is certainly not that any of them feel that there is a real constitutional problem, and they know that their position breaks with Senate precedent. It’s a position designed to take them both ways: you can claim to be against what Trump did without ever reporting against Trump.
And the only thing that could get in their way … is Trump.