Last Call at the Bar: Grading the Briefs in Trump Impeachment 2.0

Posted in: Politics

You have to admit, the job is not easy. But somebody needs to defend Donald J. Trump.

That’s just the nature of the adversarial system. No matter who you are, you need someone to share your tent when times are tough. It’s true in the jungle of impeachment trials as well as in the garden-variety criminal version. And while it’s nice to have a lawyer who believes in your cause, it’s better to have one who is good at his or her job.

As clients go, however, Donald Trump does not make anything easy for his lawyers. It’s not just his tendency to get into extremely sticky legal jams. Or his track record of disregarding sound legal advice. Or of implicating his lawyers in his own crimes, and then throwing them under the bus. Or of ruining the professional reputations of the attorneys who defend him, and endangering that of their firms. Or even (heaven forbid) his penchant for stiffing them on their fees.

No, the answer is All of the Above. So, when Trump’s newly recruited impeachment legal team abruptly quit (or “mutually agreed to part ways”—take your pick) on January 30, the story had a dog-bites-man quality. The attorneys themselves were hardly household names, though their ranks included locally notable defense attorneys and former prosecutors from both Carolinas, commended to Trump by his loyal acolyte (and future impeachment juror) Sen. Lindsey Graham. This ad hoc group had barely assembled before they were dissolved. The attorneys had neglected to conclude an engagement letter with their client (bad move) or to secure a retainer from him (worse move). To their credit, however, they did implore Trump not to center his impeachment defense on the same baseless claims of electoral fraud that got him into the present mess. This advice was unwelcome. So, with invoices unpaid, the lawyers packed their briefcases and slipped away from Mar-a-Lago, their reputations lightly sautéed, but at least not scorched.

A Fool for a Client?

That left the former Client-in-Chief in a pickle. He could, within a matter of hours, pick new attorneys who would have to scrape together a trial brief for submission to the Senate by February 2. Or, with more litigation experience under his belt than most lawyers will ever have, Donald Trump could conclude that the case was “so simple that he could try it himself and save money.” No doubt to his critics’ great disappointment, he chose the former course—at least for now.

The next day, January 31, Trump unveiled his new legal team. It would be led by David Schoen, a defense attorney from Georgia, and Bruce Castor, a former district attorney from Pennsylvania. Schoen represented Trump’s longtime associate Roger Stone (recently pardoned by Trump), while Castor was best known for declining to prosecute Bill Cosby for sexual assault in 2005, before the comedian was later charged and convicted by Castor’s successors. Whatever their qualifications to defend an embattled ex-president against grave constitutional charges on the nation’s biggest stage, the two men had one thing in common that undoubtedly helped them to act quickly. They are both solo practitioners. Thus, they did not need to clear the representation with any partners or worry about sullying any reputations but their own.

But this also meant that neither lawyer could call on the resources of a firm (big, medium, or small) to pull together the high-stakes brief that was due just 48 hours later. They were on their own.

Ants v. Grasshoppers

While Trump scrambled to find advocates for his cause, the House impeachment managers had been at work for weeks. Led by Rep. Jamie Raskin of Maryland (a former professor of constitutional law at American University), all nine managers are attorneys, and three are former prosecutors. They are backed by considerable staff expertise in the House and, in all likelihood, outside advisors as well.

The House managers’ brief, filed on February 2, is more or less what you would expect from a group of skilled lawyers in a case of profound political and constitutional significance. Clocking in at 77 pages, it moves briskly through the factual background—Trump’s refusal to accept the 2020 election results, the crumbling of his flimsy legal challenges, the pressure he put on state officials to change the results, his summoning of followers to a January 6 protest to “fight” the Electoral College tabulation in Congress, his incendiary speech to that rally, the mob’s subsequent attack on the Capitol, and Trump’s tardy and equivocal response as that attack unfolded for hours.

The narrative is forceful and persuasive, but the brief does not reveal any facts that were not already publicly known. It does not hint at affidavits or witnesses lurking in the wings. (On Feb. 4, Rep. Raskin did “invite” Donald Trump to furnish his personal testimony for the trial, but Schoen immediately rejected the offer, and it remains to be seen whether there will be any serious attempt to compel Trump to do so.) If the House managers intend to show evidence that Trump engaged in private acts to encourage the insurrection, in addition to his public statements, they have not tipped their hands. Some of the most damning evidence in the brief—regarding Trump’s hours of inaction after the Capitol siege began—is based on press reports that rely on blind quotes from unidentified officials. An impeachment trial is not necessarily bound by the strict rules of evidence that apply to ordinary courts. But a lack of direct testimony on this point could create an opening for the defense—unless the House managers have an inside witness or two up their sleeves.

Fire in a Crowded Ellipse

Having made the factual case for “incitement of insurrection” over 35 pages, the House brief spends only a handful of paragraphs establishing that this offense qualifies as a “high crime or misdemeanor” as required by Art. II, Sec. 4 of the Constitution. The argument hardly needs to be made. If Trump did incite a violent insurrection against the lawful government of the United States, for the purpose of keeping himself in power, it checks just about all the imaginable boxes of an impeachable offense.

The real meat of the brief is in its identification and refutation of Trump’s anticipated defenses. Some are dismissed with a cursory contempt (such as the idea that the election really was stolen from Trump, or that the House proceeded with impeachment too quickly). The notion that Trump’s remarks to the mob on January 6 were simply an exercise of “free speech” receives a little more consideration. But the brief easily shows that the First Amendment does not protect speech that is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” per the standard set by the U.S. Supreme Court in Brandenburg v. Ohio (1969). Moreover, what is free speech from a private citizen could well be impeachable coming from the mouth of a president. As the brief puts it, “No one would seriously suggest that a President should be immunized from impeachment if he publicly championed the adoption of totalitarian government, swore an oath of eternal loyalty to a foreign power, or advocated that states secede from and overthrow the Union—even though private citizens could be protected by the First Amendment for such speech.” In short, President Trump will have a hard time hiding behind the fig leaf of free speech.

Better Late Than Never

There is one defense that the House managers’ brief takes extremely seriously: the idea that the Senate does not have jurisdiction to try the impeachment of a president after he has left office. This argument is not absurd. There is some textual basis for it in the wording of Art. II, Sec. 4, which seems to refer to present officials (“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors”). And there is a possible structural logic for it as well: once officials are out of office, they are arguably no longer a danger to the constitutional order, and their crimes can be dealt with by the ordinary court system, as suggested by Art. I, Sec. 3, cl. 7: (“Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”)

On January 26, the Senate tabled a motion to dismiss Trump’s impeachment trial on these very grounds, by a vote of 55-45. This allowed the trial to proceed. But if only 55 senators really believe that the trial is constitutional, they are likely to fall well short of the two-thirds majority needed to convict Trump, a fact that was immediately noted by everyone. To have any chance at a conviction, the House managers will need to change some minds on this point.

It is not surprising, then, that the House brief devotes the bulk of its legal argument (26 pages) to refuting the claim that a trial cannot be held after an official leaves office. Citing arguments previously made by Professors Laurence Tribe, Brian Kalt, Stephen Vladeck, Michael McConnell, and others, the House managers’ brief explains the historical background of impeachment in British and American colonial practice, places the Constitution’s various impeachment clauses in contextual relationship to each other, and shows that the Senate has, on several occasions, actually tried impeachments of former officials. Most importantly, the House brief explains why this interpretation is necessary. If officials were immune to impeachment after leaving office, they could simply resign at the last minute to avoid accountability. As a House manager successfully argued in the impeachment trial of Secretary of War William Belknap in 1876 (who had resigned), the question was “whether you [the Senate] exercise the functions devolved upon you today as the highest court known to our Government by virtue of a constitutional power, or merely at the will and pleasure of the accused.”

Rejecting the Senate’s jurisdiction over former officials would also create a “January exception”—allowing outgoing presidents to violate the Constitution with impunity in their final days in office, grabbing for an extension of power through violence and walking away if the attempt fails. Sooner or later, such a January Exception would mean the end of the American Republic.

The House managers know they face an uphill battle to win a conviction. Their argument is grounded in the specifics of fact, history, and law, but it also asks the big questions: Can Trump’s conduct be squared with his oath of office? Can such an egregious attack on our institutions be beyond constitutional remedy? And if we tolerate such behavior from a president, where will it end? These are questions senators will have to face before they vote to punt this case away, on jurisdictional grounds or otherwise.

A Just-in-Time Production

Meanwhile, Messrs. Schoen and Castor also met the February 2 deadline, depositing their 14-page brief after barely 48 hours on the job. Addressed to the “Members of the Unites [sic] States Senate,” it does at times have the frantic, cut-and-paste feel of a term paper begun too close to the deadline. Having impressed themselves by deploying a bit of Latin (“the current proceeding before the Senate is void ab initio as a legal nullity”), the lawyers proceed to pad the brief by using the phrase no fewer than five times.

Given the exigencies of timing, however, it would be unfair to compare the Trump brief too harshly to the House managers’ effort. A more charitable view would call it “minimalist.” It contains no high-minded discussion of the constitutional stakes, no acknowledgment of the gravity of the events of January 6, 2021, and little attempt to check or reverse the emotive energy of the charges against Trump. Instead, the brief proceeds mechanically, breaking the Article of Impeachment into eight “Averments” and then admitting or denying them each in whole or in part. Were it not addressed to the Senate, the brief might be mistaken for a defense attorney’s rote answer to a DUI or burglary charge. Any real efforts at theatrics or persuasion—if there are to be any—have been deferred until the actual trial.

An example of this dehydrated approach to lawyering is found in the brief’s response to the first “Averment” summarizing the impeachment powers of Congress:

Admitted in part, denied in part as not relevant to any matter properly before the Senate. It is admitted that the Constitutional provision at Averment 1 is accurately reproduced. It is denied that the quoted provision currently applies to the 45th President of the United States since he is no longer “President.” The constitutional provision requires that a person actually hold office to be impeached.

Aside from the lifeless prose, something else is missing here: research. If there has ever been a single impeachment trial held in the U.S. Senate, you would not guess it from this brief. Not one of the 19 previous trials in our history is even mentioned, let alone analyzed. There is no attempt to explain or distinguish the several cases where the Senate indisputably conducted trials of former officials. This leaves Schoen and Castor able to make the barest of textual arguments (what does the Constitution say?). But they do not even attempt to make an originalist argument (what did the Constitution mean to the people who wrote and approved it?), let alone a structuralist argument (how does this provision fit within the overall framework of the Constitution?) or a consequentialist argument (what are the future dangers inherent in deciding this question either way?). The occasionally ambiguous constitutional text does give Schoen and Castor something to work with. But they can’t conjure much out of it without explaining how the different impeachment clauses fit together and how they have been interpreted by the Senate over time.

It is a Constitution We Are Expounding

This veil of ignorance leads Schoen and Castor into several blind alleys. For example, they claim that the case against Trump is “moot and a non-justiciable question”—forgetting that “justiciability” is a doctrine applicable only to the powers of the Judicial Branch under Article III of the Constitution, and completely inapplicable to the impeachment powers of Congress under Article I. It is also evident in their argument on the penalties applicable upon conviction by the Senate:

Article I, Section 3 of the Constitution states “[j]udgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy an office of honor…” (emphasis added). Since removal from office by the Senate of the President is a condition precedent which must occur before, and jointly with, “disqualification” to hold future office, the fact that the Senate presently is unable to remove from office the 45th President whose term has expired, means that Averment 1 is therefore irrelevant to any matter before the Senate.

According to Trump’s lawyers, the penalties applicable upon conviction by the Senate (removal from office and disqualification from future office) must be imposed “jointly” or not at all. If removal is logically impossible (because the person no longer holds office) then future disqualification may not be imposed either. This is already a rather tortured reading of Art. I, Sec. 3, cl. 7. But it is thoroughly refuted by the Senate’s practice of holding a separate vote on disqualification after the vote on whether or not to convict, a precedent dating back to at least 1907. Are Schoen and Castor arguing that the Senate’s rules on impeachment are themselves unconstitutional? If so, good luck with that. According to the U.S. Supreme Court, when the Constitution says that the Senate has the “sole power” to try impeachments, it means exactly that: the Senate sets the rules of procedure, and the courts can’t second-guess them.

The lack of a broad constitutional perspective is evident throughout the brief. There are no quotations from the Founders explaining what impeachment was for, no scholarly arguments situating the power in the constitutional system, and no legal precedents that might bolster or explain the defense’s case. In fact, there are no citations in the brief at all, other than to the U.S. Constitution, the Article of Impeachment, and a single reference to the rules of the Senate. And there is no attempt to make an argument—however acrobatic it might have to be—that holding a former president accountable for his acts in office would somehow damage the constitutional order.

Should Have Called Saul

That leaves Trump’s lawyers with only a handful of weak defenses if their jurisdictional argument fails. They claim that Trump’s January 6 address to the nascent mob on the Mall was “free speech and thought guaranteed under the First Amendment”—but do not bother to argue either the facts or the law to make their case. Incredibly, they fail to note the best exculpatory evidence for Trump: at one point in his speech he told his supporters to march on the Capitol to “peacefully and patriotically make your voices heard.” Even the House managers’ brief acknowledged Trump’s use of the word “peacefully” and tried to discount it in the context of his other remarks. You would think this bit of evidence might be relevant to whether Trump met the Brandenburg standard of intending to incite or produce “imminent lawless action,” but his own lawyers show no signs of knowing what the Brandenburg standard is. They simply neglect to make the argument on his behalf.

Despite what we know of their client’s wishes, Schoen and Castor do not try to re-litigate Trump’s much-litigated election fraud claims. They simply throw up their hands at the impossibility of ever knowing the truth. “Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements [about the election] were accurate or not,” they write, “and he therefore denies they were false.”

Nor do Schoen and Castor take up an argument advanced by some Trump defenders: that the attack on the Capitol was planned in advance, and therefore Trump’s January 6 speech could not possibly have incited it. They are wise to leave this snake in the grass. If the attack was the result of a premeditated conspiracy—rather than a spontaneous outpouring of support for Trump that got out of hand—then questions about the White House’s role in organizing the event will only intensify.

Just Desserts

The brief also argues that Chief Justice Roberts should properly preside over the impeachment trial of a former president, rather than the Senate’s president pro tempore. In a previous column, I agreed that this claim has some force, as have Vikram David Amar and Jason Mazzone in these pages. But it is a procedural objection that can be made when the trial starts, rather than a bar to the trial itself. The Senate will likely simply overrule the objection and move on with the trial. In the unlikely event that the objection is sustained by a majority vote, then Justice Roberts can put on his robe, get in a cab, and go to the Capitol. The issue does not provide grounds to dismiss the trial itself, or to challenge its results. The Supreme Court is very unlikely to intervene in the procedures of the Senate—particularly in order to saddle the Chief Justice with a duty he shows no signs of coveting.

Despite its flat and bloodless style, the brief does offer at least one creative argument: that the Article of Impeachment “is constitutionally flawed in that it charges multiple instances of allegedly impeachable conduct in a single article.” According to Schoen and Castor, Trump’s various election-overthrowing offenses should have been split into multiple Articles of Impeachment, allowing separate votes on each.

Such a claim is unlikely to trouble the House managers much. They have avoided throwing in the kitchen sink. Everything in the Article of Impeachment is closely related to Trump’s actions leading up to the January 6 attack on the Capitol. Any argument along the lines of “Honorable Senators, you must acquit—there’s just too much impeachable conduct here for one article!” will likely be met with the laughter it deserves.

The Price of Justice

For Donald Trump’s first impeachment trial, which concluded just over a year ago, the 45th President assembled a legal team with some notable firepower. Their arguments were not always good, nor necessarily made in good faith, but they were carefully wrapped in professional-looking cellophane.

Given his comfortable margin of acquittal, perhaps Trump felt that he did not need another round of fancy impeachment lawyering, this time on his own dime. Already driven from the presidency, he may imagine that he can afford to cut things a little closer. Or maybe he wants to show us that the law and lawyering have nothing to do with it. That would explain why he cut his legal team to the bone, and why that team submitted a cursory brief that makes little attempt to persuade.

If Trump can survive a second impeachment vote—based on little more than his lingering death grip on the Republican Party—it will show that he is still operating where he has always believed himself to be: well beyond the reach of the law.

Posted in: Law Practice, Politics

Tags: impeachment

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