Trump’s Lawyers Lost the DayBreaking News
tags: impeachment, Donald Trump
The intended escape route was the argument advanced by Trump’s lawyers in their briefs: that the Constitution does not authorize the Senate to hear impeachments of former officials. Once an official resigns or once that official’s term expires, they say, impeachment expires too.
Senator Rand Paul moved a vote on that claim on January 26. The vote lost 55–45, with five Republicans joining the majority, but 45 senators would more than suffice to protect Trump from conviction. The route was mapped. Today, on the first day of the formal proceedings, Trump’s lawyers were supposed to organize the exit.
Only Trump’s lawyers messed up. Trump’s lawyers badly, badly messed up, humiliatingly messed up, world-historically messed up. They delivered two of the worst speeches ever delivered on the Senate floor—one vapid and meandering, the other belligerent and self-contradictory.
The quality of the speeches won’t make any difference to the outcome of the trial. The senators who will vote to acquit Trump are not voting because they are convinced of his innocence. They are voting because they are scared. And it will take more than an ill-prepared and ill-mannered legal team to unscare them.
But the quality of the speeches makes a difference in another respect. It’s not just Trump—and not even primarily Trump—who is on trial in the Senate this week. The partisans who enabled Trump are facing a trial of their own. What they desperately crave is a face-saving excuse for one final round of enabling.
The stupid slovenliness of the Trump legal team today, though, threatened to deprive senators of that face-saving excuse. As he so often has, Trump is making Republicans in Congress eat dirt, and eat their dirt without even the seasoning of plausible believability. It’s raw, dry dirt—pure in all its dirtiness.
Trump’s lawyers needed to hammer home the argument that when Trump’s presidency expired, so did the House impeachment. They needed to argue that the Senate cannot try—much less convict—an ex-president.
On their way to that argument, Trump’s legal team faced a number of bumps. The bumpiest bump of them all is a precedent from the Ulysses S. Grant administration. Grant’s secretary of war, William Belknap, was accused of corruption. Belknap resigned; the House impeached him anyway. The Senate debated whether a trial could proceed against a former official—and ultimately decided that it could. Belknap was not convicted in the Senate. But the precedent established in 1876 would seem to apply to Trump in 2020, and to apply all the more strongly, given that Belknap had resigned before the House impeached him, whereas Trump was still in office when he was impeached this second time.
The Trump team’s approach to the Belknap precedent can be summed up as: “Belknap? Bel-who?” His name and case went unmentioned by either of Trump’s lawyers on the very day designated for dealing with the precedent Belknap bequeathed them. Trump’s first counsel, Bruce Castor, seemed lost in vapors of his own making. But Trump’s second and more lucid lawyer, David Schoen, seemed almost belligerent in his refusal to deal with the Belknap precedent. Schoen insisted again and again that a post-term impeachment trial was illegal, unconstitutional, immoral, unprofessional, ultra vires, and possibly even ultraviolet—and yet never once mentioned that one such trial had already happened and been accepted by the Senate at the time as valid. Can you just close your eyes and clap your hands for Tinkerbell to make that precedent go away? Yes, said Team Trump.
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