News that Donald Trump and his impeachment defense lawyers have decided to go their own separate ways raises questions about what will, and will not, take place at the impeachment trial set to begin on February 9 in the United States Senate.
Trump’s five lawyers apparently could not agree with the defense that the former president wants to present: In Trump’s mind, the 2020 election was stolen, and that is what he wants to focus on in his impeachment trial.
I’ve a message for Trump: Don’t count on being able to put on that defense. Strictly speaking, it is not even relevant to the charges.
Admittedly, an impeachment trial is not a court trial. It is a quintessential political event; the Senate is free to adopt whatsoever procedures it deems relevant to deciding whether Trump should be impeached.
But the House Articles of Impeachment are a limiting factor. Fairness requires that Trump be tried on what he is charged with, and no more; similarly, he can defend against the charges lodged, but he should not expect to be able to transform the proceedings into a campaign rally. A Senate trial may be informal, as a matter of legal procedure, but it is a whole hell of a lot more disciplined than the usual fora in which Trump excels.
Trump is charged with inciting insurrection. Period.
Never mind his claim that the election was stolen, or that systemic fraud so tainted the process that the results are illegitimate. The fact is that the state’s certified their results, the Electoral College tallied the votes, the Senate accepted them. Joe Biden has been sworn in as president. I’ve little use for Biden and his flotilla of executive orders, but he is, like or not, president.
The impeachment trial is not a place to relitigate the election, and anyone expecting that it can be transformed into that is kidding himself.
Lawyers are familiar with a concept known as the collateral bar rule: You cannot justify disobedience to a lawful order if the order is in error; you obey while challenging the order elsewhere. Trump will learn that the hard way.
None of this is to say that Trump doesn’t have defenses.
He spoke his mind as all politicians do. He engaged in hyperbole. But he did not incite a riot. Tens of thousands of protestors appeared at a rally. A handful broke. Things got ugly. This was no coup attempt, not even close. Absent proof that Trump had a hand in planning violence, or that he knowingly encouraged it, the trial should result in an acquittal.
But why, really, try him at all?
Trump’s been removed from office. He is no longer president. Under American law, there are but two consequences of conviction of impeachment: removal from office and a bar from serving in the future. Only the latter is in play now.
The House Articles of Impeachment were instituted while Trump was president, arguably giving the Congress jurisdiction over the matter. The fact that removal from office is now moot does not defeat the case. The Senate can still convict and bar Trump from running again. That is the sole issue.
At present, it appears that there are insufficient votes to convict Trump; it takes two-thirds of the Senate to convict. But that assumes the trial, set to begin in a little more than one week, takes place in an orderly manner.
Trump’s decision to part ways with his lawyer on the eve trial raises disturbing possibilities. Does Trump plan to represent himself? That would somehow be consistent with his character. He’s the man with the master plan, the negotiator, the star at the center of his own galaxy. “Screw the lawyers,” I can hear him saying. “I can do this myself.”
I suspect if Trump conducts his own trial, he increases the likelihood of a conviction. He is incapable of listening, and will not hear the fact that his defense – the election was stolen, the American people were robbed – is irrelevant to the proceedings. Such a defense will be a direct appeal to his base, the frazzled millions who still can’t believe he lost. But what will they do with the defense, take to the streets – again?
An even darker possibility? Trump blows the trial off, just doesn’t show, and takes his case directly to the people. Such contempt for the process would justify conviction.
Impeachment is high constitutional drama. It is a chance for Congress to say of a high officer, “this person is bad for the republic.” Donald Trump’s effort to turn the Senate trial into a prime-time campaign rally will simply convey that he has no respect for the metes and bounds of our constitutional order. He might just persuade reluctant Republicans that he really is unfit ever to run again.
A person representing himself has a fool for a client, lawyers say. It’s almost always true. It would certainly be true in the Trump impeachment trial.
There’s still time, but barely enough, for Trump to lawyer up and win this thing. I wonder if he’s willing to listen to reason, or whether, like the impetuous boss he once was on television, he really means to tell the American people, “I’m fired — forever!”