Shortly after the impeachment in the House, Bloomberg reported that Trump was “struggling” to find a team of lawyers to manage his defense before the Senate. Trump’s entire first impeachment defense team, including Jay Sekulow and former White House Counsel Pat Cipollone, turned down the opportunity for a repeat performance. Even the time limit on Trump’s long-running arrangement with Pam Bondi seems to have expired; she also opted out.
Potential attorneys are likely to be feeling better these days, now that Senate Republicans have made it clear that when they gave Trump a free pass the first time, they really meant it. With 45 Republicans voting that it’s pointless to move forward with the impeachment, and Republicans threatening to drag the Senate into a months-long recounting of post-election events if a single witness is called, it seems as if the legal team of Nobody, Absent, and Nothing could stage an adequate defense.
The problem is that Trump isn’t happy to just sit there, collect another free pass, and move on. Instead, Trump has been insisting to his attorneys that he wants to use the impeachment trial to put on “evidence” of supposed election fraud.
In other words: Trump wants to use his impeachment trial not to defend himself against charges of inciting a murderous, seditious mob, but to explain why that mob was in the right when it smashed into the Capitol on a hunt for hostages.
That insistence is part of what has made it so difficult for Trump to secure a legal crew. Trump got so upset over the reluctance of his legal team to join in the sedition attempt that he parted ways with five members of his legal team last week. However, The New York Times did show Trump picking up two new attorneys to head his impeachment team: former Pennsylvania District Attorney Bruce Castor, and David Schoen. Schoen was most recently in the public eye as the lead attorney for Roger Stone in his defense against multiple charges related to the Mueller investigation. That would be Stone’s losing case, requiring Trump to get out his pardon pen.
But, as the Times is now reporting, just because Trump has new attorneys doesn’t mean that those attorneys are going to follow him off a cliff. Instead the team is arguing that they should conduct his defense on the lines that the trial itself is unconstitutional.
This claim is also false, but it has serious advantages in getting the results Trump, his legal team, and Senate Republicans want. First, it prevents Republicans from having to conduct a trial on whether Trump engaged in incitement while Trump is actively engaged in more incitement. Second, it lets the Republicans lean back into technical arguments they’ve already made about the legality of impeachment post-term. It’s an argument that lets Republicans vote to acquit Trump while still maintaining that they’re just darn horrified about the insurgency thing.
Which is, of course, the whole reason that Republicans launched the claim that impeaching Trump after they purposely allowed the clock to run out is unconstitutional. It’s certainly not because any of them feel there’s a real constitutional issue, and they know their position breaks with past Senate precedent. It’s a position designed to let them have it both ways: They can claim to be against what Trump did without ever going on record against Trump.
And the only thing that could get in their way … is Trump.