Trump’s Impeachment-Trial Lawyers Refuse to Seriously Engage with the Constitutional Issues by Amy Davidson Sorkin

About five minutes into his argument on Tuesday, the first day of the second impeachment trial of Donald Trump, Bruce Castor, one of the former President’s lawyers, asked the senators before him to picture a married couple in a car. “When you’re driving down the street and you look over at your wife and you say, ‘Hey, you know what? That guy’s about to drive through a red light and kill that person’ ”—Castor waved a pointed finger at the senators—“your wife can testify to what you said, because, even though it’s technically hearsay, it’s an exception because it’s an event living through the person. Why? No opportunity for reflective thought!” Castor was, perhaps, providing an opportunity for some reflection himself, if of a confused kind. Was Trump the person driving the car or the guy running the red light? Or was the hazardous driver the mob at the Capitol on January 6th? But then who was the wife? (Would Melania Trump be testifying? The question of witnesses hasn’t been settled.) Did an observation about the rules of hearsay testimony bear on the question actually before the Senate on Tuesday, namely whether that body had jurisdiction to hold an impeachment trial even after Trump’s term had ended? Not in any discernible way. Did this tale of traffic-related tragedy speak to any aspect of Trump’s defense against the charge that he incited an insurrection? If so, the nation is in for a strange few days as Trump’s defense unfolds, or rather unravels.

The trial will go forward—on Tuesday evening, the Senate voted 56–44 that it does have jurisdiction. That outcome was not much of a surprise; two weeks ago, in a procedural vote, fifty-five senators voted to kill a motion, put forward by Rand Paul, Republican of Kentucky, arguing that the trial was unconstitutional and therefore had to be stopped. That number included five Republicans: Susan Collins, of Maine; Lisa Murkowski, of Alaska; Mitt Romney, of Utah; Ben Sasse, of Nebraska; and Pat Toomey, of Pennsylvania. Bill Cassidy, of Louisiana, joined them on Tuesday. He told reporters that he had found the presentations by Castor and his co-counsel, David Schoen, to be “disorganized” and “random.” Perhaps, after such debacles as Rudy Giuliani’s Four Seasons Total Landscaping press conference, the poor quality of Trump’s legal representation shouldn’t be much of a shock. At a certain point, though, what looks like incompetence may be better understood as contempt for the process.

Neither Castor nor Schoen bothered to seriously engage with the House managers’ case. Castor, at times, came close to babbling—would it interest the senators that his parents had a record of the speeches of the late Senator Everett Dirksen that they played for “Little Bruce”? Did the senators even “still know what records are”? Schoen tossed out disconnected pieces of legal jargon in angry tones. For example, he claimed that the case against Trump had to be dismissed because of “Nancy Pelosi’s intentional abandonment or waiver of jurisdiction—if the House ever acquired jurisdiction.” (The House acquired the jurisdiction to impeach Trump, who was, at the time, a sitting President, under Article 1 of the Constitution.)

The House managers prosecuting the case against Trump had come with comprehensive responses to what the Republicans were pretending were legitimate constitutional misgivings. Jamie Raskin, of Maryland, the lead manager, argued that, when it came to impeachment, there was no “secret January exception hidden away” in the Constitution, as Trump’s defense had suggested. Otherwise, an outgoing President would have something like free rein in the last few weeks of a term, giving an incentive to act in desperate ways to hold on to power. (As David Cicilline, of Rhode Island, another of the managers, put it, adopting a January exception would not only excuse the past but set a pattern for the future.) Raskin reminded the senators what such desperation could look like by means of an almost fourteen-minute-long video replaying some of the scenes of January 6th, from Trump telling his supporters at a rally that they should head to the Capitol (he said that he would go with them, but, of course, did not) to the mob entering the Senate chamber, searching for lawmakers, and attacking police officers. Raskin was in the Capitol that day, for the official tallying of the electoral votes, even though he was still in mourning for his son, who had recently died; one of his daughters and his son-in-law had come with him, and, when the mob entered the complex, he said, he feared that he would lose them, too.

There is a precedent for impeaching an official after he has left office: in 1876, the House impeached William Belknap, who had been the Secretary of War, even though he had hurriedly resigned from his post, in an effort to escape that judgment. But, as Raskin noted, the question with Trump is simpler than that. “It is undisputed that we impeached him while he was President,” he said. The House approved its article of impeachment on January 13th, a week before the Inauguration, but the Majority Leader at the time, Mitch McConnell, declined to bring the Senate back into session to deal with it immediately. “There can be no doubt that this is a valid and legitimate impeachment,” Raskin noted. The Constitution gives the Senate the power to try “all impeachments,” and “all means all.”

After Raskin spoke, Joe Neguse, of Colorado, the youngest representative to serve as an impeachment manager—he is thirty-six—filled out the argument. He made a point of quoting conservative legal scholars, including a co-founder of the Federalist Society, who agreed with the managers’ constitutional interpretation. Neguse also walked the senators through the historical context for the Framers’ conception of the impeachment power. Both he and Raskin made note of the then-well-known case of Warren Hastings, a British former governor of Bengal, who was impeached after leaving office and was being tried, in Britain, as the Framers were writing the Constitution.

Because the Framers drew on concepts in British common law, such citations are a commonplace in discussions of constitutional interpretations. For Castor, though, the references were the spark for another odd reverie. “I can’t believe these fellows are quoting what happened pre-Revolution, as though that’s somehow a value to us,” he said. (A minute earlier, he had extolled the ancient “senate of Greece, sitting in Athens.”) Castor continued, “We left the British system. If we’re really going to use pre-Revolutionary history in Great Britain, then the precedent is we have a parliament and we have a king. Is that the precedent that we are headed for?” (It is not.) If it bothered Castor when, a bit later, his teammate Schoen began citing “the history of Anglo-American jurisprudence,” he did not speak up.

Schoen had his own contradictions. Pelosi had not sent the impeachment to the Senate quickly enough, he claimed, but the Democrats had also engaged in a “rush to judgement.” He was willfully oblivious to the role that impeachment plays in the constitutional order, arguing that the regular criminal-justice system should be left to deal with misdeeds late in a President’s term and—in a scrambling of the timeline—that Biden’s election victory in November, 2020, was the proper redress for Trump’s outrageous actions in January, 2021. (Separately, he argued that an impeachment conviction would “disenfranchise” the people who voted for Trump.) Instead of dealing with the Belknap precedent, he claimed that the idea that an official would resign in an attempt to avoid the consequences of an impeachment was a far-fetched “complete canard.” He furiously accused Trump’s critics of being driven by “base hatred.” What they wanted, he said, was for Trump to be “cancelled.” If, by that, he meant that Trump is at risk of being barred from future office if he is convicted, then Schoen’s problem is not with this trial but with the Constitution. And there were indications that Schoen’s problem is with the Constitution: he said that the Framers’ wariness of mobs and potential dictators, which the managers had cited in a pretrial brief, was really just evidence of their “élitist political view.”

The President’s argument on the question of jurisdiction was, in short, messy, bitter, and at times incomprehensible. At one point, Castor lashed out at Ben Sasse, but exactly what he was trying to say about the senator was hard to tell—it had something to do with Nebraska being “quite a judicial thinking place.” Bill Cassidy wasn’t the only Republican senator who expressed his disappointment (although he was the only one to change his vote). After all, many Republicans had been counting on Castor and Schoen to make their opposition to impeachment look like the product of substantive constitutional deliberations, rather than an attempt to cover for Trump. “I thought I knew where he was going,” Lindsey Graham, of South Carolina, said of Castor. “I really didn’t know where he was going.” Through a red light, maybe, barrelling straight for a judicial thinking place? In his presentation, Schoen said, “I can promise you that, if these proceedings go forward, everyone will look bad.” Not everyone.


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