Former President Donald Trump’s legal strategy contradicts conventional wisdom that money can buy the best defense. From the pre-election and post-election litigation to the Senate impeachment proceedings this week, Trump’s legal team has employed strategies that range between sanctionable and incapable.
Trump attorneys Bruce Castor and David Schoen took Congress – and everyone watching at home – on a wild, meandering ride.
The first day of the trial revolved around whether it is even constitutional to indict a former federal official. Spoiler alert – that’s it. Ultimately, a majority of the senators agreed. But not before Trump attorneys Bruce Castor and David Schoen took Congress – and everyone watching at home – on a wild, meandering ride.
It’s no surprise that Trump was reportedly disappointed with his lawyers’ efforts. Anyone who watched would have been – and what Twitter looked like, a lot of lawyers watched.
Castor’s sprawling, incoherent, and inaccurate opening speech is a perfect microcosm for this trial: the facts, law, and constitution are all on the side of the house – and none of it will matter as enough Republicans will let Trump off the hook.
– Steve Vladeck (@steve_vladeck) February 9, 2021
In the words of Senator Bill Cassidy, R-La., Trump’s defense team did an “awful job”.
Castor, who first argued on Trump’s behalf, stated with certainty that the team changed their strategy at the last minute due to the strength of the House impeachment manager case. This is an enigmatic revelation, even for a legal team that was assembled by Trump’s first team just a week ago after the mass exodus. Puzzling because the property manager’s presentation was powerful and emotionally convincing, but it contained no surprises. All arguments from Rep. Jamie Raskin, D-Md. And Company are set out clearly in their briefs.
Castor continued, but while we heard many words, we heard few arguments. Again, the only question before the Senate on Tuesday was whether the impeachment process was constitutional. Trump’s legal team did not really provide a way to conclude that a lawsuit was not constitutional. As Cassidy put it, “You went out of your way to talk about this question.” Cassidy wasn’t alone. Senator Lisa Murkowski, R-Alaska, said she was “stunned” and frankly confused. Senator John Cornyn, R-Texas, echoed his colleagues’ comments, saying Cantor “just went on and on and on and didn’t really address the constitutional argument”.
To be fair, oral arguments can be difficult, and that process is far from over. Maybe Castor was just nervous? It’s possible, but highly unlikely, given what we’ve already seen in writing from this team. (Yes, this includes those submissions where “USA” is misspelled.)
Those senators looking for strong legal or political arguments will not find any in the paperwork. For example, Rep. Joe Neguse, D-Colo., One of the House’s nine impeachment executives, pointed out that the Trump team’s mandate completely misrepresents the precedent of former Secretary of War William Belknap. Belknap, who resigned shortly before his impeachment trial in the late 19th century, provides strong evidence as to why Trump can be charged, not the other way around.
In another example, Trump’s legal team repeatedly cited and distorted the writings of Brian Kalt, a law professor at Michigan State University. Kalt described the Trump team’s confidence in his writing as “sloppy to insincere”.
This isn’t the first time Trump’s legal team has dealt with less than salute legal arguments. We just have to go back to the recent history of his impeachment litigation for a few weeks. In the weeks following the election, Trump’s legal team spread lies, falsehoods and conspiracy theories. Its legal “filings” have been routinely and flatly rejected. Trump attorney Lin Wood could face a lockdown. An ethics complaint has been filed against former Trump legal advisor Rudy Giuliani. The Michigan governor has requested the lockdown of another member of the Trump legal team, Sidney Powell.
People ask me if I am going to teach one of the post-election disputes in an electoral class or a political class. And the answer is no. Trump’s post-election papers have not raised any real franchise issues. Instead, we should post-election teaching in professional responsibility classes. Wood, Giuliani and Powell offered a master class on how not to behave as a member of the bar.
Likewise, the actions of the Trump impeachment team should be taught in a litigator class rather than a constitutional law class. Again, they provide the perfect picture of what not to do. First, don’t lie and misrepresent it in your records. Second, don’t make silly mistakes that do nothing but undermine your credibility. Third, address the actual legal issue. No more and no less.
The reality, of course, is that Trump’s impeachment team, in all its clumsy and potentially insane glory, is likely to win this case. In contrast to post-election litigation, which was settled in courtrooms, the outcome of impeachment proceedings is determined in a political forum. The Senators, not just judges or jury in the traditional sense, will decide whether Trump will engage in incontestable behavior when he sends an angry mob to storm the Capitol. While there is so much uncertainty in this world, the outcome of this fall is as good as predetermined.
And so the really depressing part of this story isn’t the bad legal profession – it’s that not even a naked incompetent case could sway Republicans’ minds.