With mere hours left before a deadline for Donald Trump to officially answer the impeachment charge against him, the former president was still scrambling to assemble a legal defense, announcing that he had hired two new lawyers after a five-person team abruptly quit their roles.
Trump has until noon on Tuesday to reply to a charge of incitement of insurrection, for encouraging the assault on the US Capitol on 6 January in which five people died. His trial in the Senate is scheduled to begin on 9 February.
With most Republicans signaling support for the former president, the trial is seen as having little chance of ending in conviction, which would open the way for the Senate to bar Trump, 74, from ever holding office again.
But the trial is still seen as a potentially explosive disruption in Washington, where the Biden administration is laboring mightily to get its agenda off the ground and some Republican leaders have been attempting to creep away from Trump.
The unveiling of Trump’s new legal pairing – one a Fox News commentator and former counsel to the sex offender Jeffrey Epstein, the other a former county prosecutor who opposed charging Bill Cosby with sexual assault – fueled concerns the provisional return to normalcy since Joe Biden’s inauguration is about to be upended.
The trial could be particularly dangerous, legal scholars said, if Trump builds his case around his lie that the November election was stolen and Senate Republicans effectively endorse that lie, in unprecedented numbers, by voting to acquit.
Multiple reports suggested Trump jettisoned his previous legal team because they were unwilling to recite the election fraud lie. Trump’s new lawyers, David Schoen and Bruce Castor, did not indicate what defense they had planned.
“Both Schoen and Castor agree that this impeachment is unconstitutional,” a statement said, adding that Schoen considered it “an honor” to represent Trump.
Castor said: “The strength of our constitution is about to be tested like never before in our history.”
Schoen is an eager media presence whose past clients include Roger Stone, convicted for lying to Congress in the Russia investigation but pardoned by Trump. The attorney also told the Discovery channel Epstein had asked him to take over the defense of his case before the convicted sex trafficker killed himself in prison in August 2019.
“I don’t believe he took his own life,” Schoen said, demonstrating an ease with the conspiratorial thinking that has fed Trump’s election lies and taken over the Republican base.
In a separate interview with the Atlanta Jewish Times, Schoen said: “I still think [Epstein] was murdered.”
Castor was the Republican district attorney for Montgomery county, a Philadelphia suburb. But he lost a re-election effort in 2015 when his decision not to charge Cosby, who was later convicted of aggravated indecent assault, became a campaign issue.
Neither Schoen nor Castor has any expertise in constitutional law, which mainstream scholars see as the most promising path for Trump’s defense. A minority have argued that the constitution does not allow for a trial of a political figure who has left office. Most constitutional scholars disagree sharply, invoking non-presidential precedent.
“The House’s impeachment of Trump – like an indictment – occurred before he was out of office, and therefore requires a trial,” tweeted Daniel Goldman, who led the cross-examination of witnesses before the House judiciary committee during Trump’s first impeachment.
Trump has disagreed with that prevailing reading of the constitution.
“The Democrats’ efforts to impeach a president who has already left office is totally unconstitutional and so bad for our country,” adviser Jason Miller said.
Other analysts have observed that the nature and strength of Trump’s defense does not matter if Republicans are planning, as they appear to be, to acquit him anyway.
“The ‘crisis’ over Trump’s legal team quitting assumes that the substance of the impeachment case will sway Senate Republicans,” the Princeton University historian Julian Zelizer tweeted. “Most already have their answer. Trump could offer no defense or he can go on the floor to read lines from the Joker movie – they would still vote to acquit.”
Trump is the only president to be impeached twice. He was first impeached in December 2019, on charges of abuse of power and obstruction of Congress, regarding approaches to Ukraine for dirt on rivals including Biden. The Senate acquitted him with only one Republican, Mitt Romney, voting to convict.
Trump was able to assemble a relatively strong legal team, including White House counsel Pat Cipollone, former Bill Clinton prosecutor Ken Starr, constitutional scholar Alan Dershowitz and deputy counsel Patrick Philbin. Trump also won supportive testimony from the conservative constitutional scholar Jonathan Turley. But when Trump sought his involvement this time around, the Washington Post reported, Professor Turley declined.
The Ohio Republican senator Rob Portman told CNN on Sunday any argument Trump makes about supposed election fraud “will not benefit him” because “Joe Biden was duly elected” and that is “the view of the Trump Department of Justice” too.
Any lawyer who repeats Trump’s fraud claim before Congress would risk legal sanction, analysts said, noting that in the midst of Trump’s attempts to get ballots thrown out, not even the former New York mayor Rudy Giuliani would make certain claims about election fraud before an actual judge.
Giuliani is eager to defend Trump in his new impeachment trial, the New York Times reported – but key Trump advisers are against it.
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