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Insiders say Trump’s second Senate impeachment trial is going to be unprecedented and ugly

‘You can’t do an impeachment on the floor of the Senate with two f**king lawyers,’ said one former Trump official, adding that he’s was worried the former president will embarrass himself

Andrew Feinberg
Washington DC
Wednesday 03 February 2021 16:42
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Related video: Trump impeachment lawyer calls trial 'slap in the face'

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It’s one week now since all but five Republican Senators called former President Donald Trump’s second impeachment trial an unconstitutional exercise. It’s days before opening arguments will be delivered. And what’s become clear is that the quasi-legal battle on the upper chamber’s floor is set to be both unprecedented and ugly.

The last time Trump was impeached, that time for a quid pro quo connected to now-President Biden and Ukraine, was just under a year ago. Yet in many ways, not much has changed since the last time Trump found himself in the senatorial dock. While Democrats now hold a majority in the upper chamber by virtue of Vice President Kamala Harris’ tie-breaking vote, there do not appear to be more than a handful of Republicans who are inclined to even consider voting to convict Trump, much less bar him from future office.

But despite strong winds still blowing against conviction, experts and veterans of Trump’s first brush with impeachment say there will be key differences between that trial and this rematch.

Last time around, Trump’s defense was led by a veritable “who’s who” of the MAGA legal establishment, including then-White House Counsel Pat Cipollone; Deputy Counsels Pat Philbin and Eric Herschmann; ex-Florida Attorney General Pam Bondi; veteran conservative Supreme Court litigator Jay Sekulow; and Harvard Emeritus Professor Alan Dershowitz. But in the wake of the January 6th assault on the US Capitol by a pro-Trump mob, much of the legal world has turned down the chance to defend the 45th president’s actions, and none of his original legal team have signed on to defend him next week.

And while Trump was initially set to retain team of five veteran trial lawyers, all five parted ways with him last week. Reportedly, this was due to disputes regarding legal fees and the ex-president’s desire for his team to argue that he was justified in insisting that President Biden’s victory was the result of widespread voter fraud.

Trump’s answer to the House’s article of impeachment ended up being signed by just two lawyers: former Jeffrey Epstein defense attorney David Shoen, and the ex-Pennsylvania Attorney General who once refused to prosecute now-convicted rapist and disgraced actor Bill Cosby.

One former Trump White House official who served during the first trial predicted that Trump will need to “bulk up” his current team if he wishes to avoid embarrassment.

“You can’t do an impeachment on the floor of the Senate with two f**king lawyers,” he said, before noting that even some of Trump’s most avid television defenders — including Dershowitz and George Washington University Law School professor Jonathan Turley — are among those who’ve declined requests to participate in next week’s trial.

By contrast, House Democrats have stacked their lineup with a team of rising stars and veteran lawmakers, many of whom have relevant experience in both their previous careers and their congressional tenures.

Primus inter pares among them is Maryland Representative Jamie Raskin, the lead impeachment manager who authored the single article of impeachment. Raskin also helped lead the charge to pass that article just days after burying his 25-year-old son, Thomas.

While the leader of Democrats’ last impeachment team — Rep. Adam Schiff — was a former federal prosecutor before entering politics, Raskin is not a trial lawyer. But that’s not to say the third-term representative is not a legal heavyweight in his own right. Before entering politics, Raskin, a Harvard-educated attorney who once edited the Harvard Law Review, taught constitutional law at American University’s Washington College of Law for decades before winning election to the Maryland legislature in 2006.

And whereas Schiff’s frequent television appearances in his capacity as chair of the House Intelligence Committee made him a bête noire to most Republicans long before he led the 2019 investigation which led to Trump’s 2020 trial, Raskin will enter the well of the Senate with perhaps the rarest of commodities in Washington: respect from both sides of the aisle.

“You’d have to look far and wide before you found someone who doesn’t genuinely like him,” opined one Republican House member, who added that despite the ideological differences between Raskin and nearly every Republican member, he is generally regarded as a “work horse” and a serious legislator.

Raskin leads a team packed with experienced trial attorneys, including former Air Force Judge Advocate (and current reservist) Rep. Ted Lieu of California; ex-prosecutors Rep. Eric Swalwell and US Virgin Islands Delegate Stacey Plaskett (one of his former students); plus Rhode Island Rep. David Cicilline, a former District of Columbia Public Defender. Additionally, Reps. Diana DeGette, Joe Neguse, and Madeleine Dean played significant roles in the run-up to Trump’s first impeachment, the former by presiding over the House floor during debate over the articles themselves, and the latter two by participating in the drafting process on the House Judiciary Committee.

The glut of experienced trial lawyers on the House’s side could be a significant advantage if Democrats’ control of the Senate leads them to break precedent from Trump’s first trial by calling witnesses.

So far, Democrats have not indicated whether or not they will seek to include witness testimony in their case, but it’s possible that they will.

Frank Bowman, a University of Missouri School of Law professor who has written extensively on the federal impeachment process, said witness testimony would probably not sway any Republicans who voted to dismiss the article last week. Nevertheless, it could be advantageous for Democrats if they are seeking to make an impression on those Americans watching the trial at home.

“The point of all that stuff is just to illustrate particular points for the TV audience — you just have to pick and choose which ones you want,” said Bowman, who suggested that Democrats could call some of the police officers whose actions were documented in viral video clips that day.

And while a source with knowledge of Democrats’ preparations said their presentation will rely heavily on existing evidence of Trump’s own words — including his January 6th rally speech — Trump allies are already threatening to turn the trial into a circus if Democrats attempt to use evidence to press a case.

One of Trump’s closest allies in the upper chamber, South Carolina Senator Lindsey Graham, said on Monday during a Fox News appearance that if Democrats call even a single witness, it would be opening “Pandora’s box”. It would be inappropriate, he added, because of a House process that he slammed as an “affront to the presidency and due process” since Democrats impeached Trump in part based on a speech he delivered as president, and did so without holding hearings.

“If you open that can of worms, we’ll want the FBI to come in and tell us about how people pre-planned this attack and what happened with the security footprint at the Capitol,” Graham said.

For his part, Bowman called Graham’s threat “a joke.”

“Lindsey Graham is yammering about how they’re gonna drag this out until hell freezes over? Come on,” he said. “The idea that Republican Senators want the attention of the country for even the next minute to be on what happened between November 4th and January 6th is complete fantasy.”

Another one of the ex-president’s remaining political advisers, Jason Miller, also used a Tuesday Fox News appearance to claim that Democrats were “putting free speech on trial” by punishing Trump for exercising his First Amendment right.

But Harvard Emeritus Professor Laurence Tribe — the author of the constitutional law textbook used at most law schools — said such a defense doesn’t hold water because Trump was speaking not as a private citizen, but as president of the United States.

“They're basically making what I would call the ‘Citizen Trump’ defense — he's a private citizen, so you can't do anything to prevent him from engaging in another coup like this… and he has all the free speech rights of a private citizen. But of course, he wasn't a private citizen, he was speaking from behind the presidential seal, he was speaking with all the power and authority of a president. And you can't take the oath as president and have all that power and none of the responsibility,” Tribe said. “You can't take an oath as president of the United States, and then urge people to burn down the Capitol.”

Like Graham, Miller also threatened retaliation if Democrats use Trump’s words against him.

“If they’re going to go after one individual, try to change the constitution to do that, you know what we’re going to do? We’re going to put the Democrats on trial. We’re going to put Chuck Schumer, we’re going to put Nancy Pelosi, we’re going to go and put Maxine Waters, we’re going to put them on trial next week, and the country and the entire world is going to see just how frivolous and vindictive the Democratic Party is,” he said.

But according to Bowman, such a threat is just more evidence of the weakness of Trump’s defense: “Anytime they start saying, ‘Oh, we’re… gonna beat up on Chuck Schumer and Nancy Pelosi,’ you pretty much know that they're basically giving up on winning on substance… They’ve got nothing to say about the merits, so they’ve got to talk about something else.”

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