Trump Wants to Push ‘Stolen Election’ Claim in Senate Trial

The man still can't get out of his own way.

We learned over the weekend that the legal team who were hired to handle Donald Trump’s defense during his impending Senate impeachment trial had quit. Now we know why.

WaPo (“Trump’s legal team exited after he insisted impeachment defense focus on false claims of election fraud“):

The implosion of former president Donald Trump’s legal team comes as Trump remains fixated on arguing at his second impeachment trial that the 2020 election was stolen from him, a defense that advisers warn is ill-conceived and Republican strategists fear will fuel the growing divide in the GOP.

South Carolina lawyer Karl S. “Butch” Bowers Jr. and four other attorneys who recently signed on to represent the former president abruptly parted ways with him this weekend, days before his Feb. 9 Senate trial for his role in inciting the attack on the U.S. Capitol. On Sunday evening, Trump’s office announced two new lawyers were taking over his defense.

Two people familiar with the discussions preceding the departure of the original legal team said that Trump wanted them to make the case during the trial that he actually won the election. To do so would require citing his false claims of election fraud — even as his allies and attorneys have said that he should instead focus on arguing that impeaching a president who has already left office is unconstitutional.

That approach has already been embraced by many Republican senators, many of whom cited it when they cast a test vote against impeachment last week.

Trump’s lawyers had initially planned to center their strategy on the question of whether the proceedings were constitutional and on the definition of incitement, according to one of the people, who, like others interviewed for this report, spoke on the condition of anonymity to describe the internal conversations.

But the former president repeatedly said he wanted to litigate the voter fraud allegations and the 2020 race — and was seeking a more public defense of his actions. Bowers told Trump he couldn’t mount the defense that Trump wanted, the person said.

“It truly was mutual,” the person said. “The president wanted a different defense. The president wanted a different approach and a different team.”

A Trump spokesman has called this report “fake news,” which means it’s definitely true.

Leaving aside that Trump was impeached while he was still in office and that the question is about whether the Senate can try him now, the idea of continuing to press the “stolen election” nonsense as a cornerstone of the defense is insane. Beyond the fact the neither Trump nor any of his lawyers have managed to produce even a shred of evidence for the claim, it’s irrelevant to the case. Even if the election had been blatantly stolen—and, again, there’s no evidence of that—it would still be a high crime to insight a violent attack on the Capitol.

The two-pronged argument his lawyers were proposing—it’s unconstitutional to try a former President in this venue and, even if it weren’t, his speech didn’t amount to incitement—is a much more promising strategy. The former is not only quite plausible (I come down on the other side but it’s a close call) but one that enough Senators to deny conviction have already signified by their vote they agree with. The latter, too, is more than arguable.

Now, it’s perfectly reasonable to claim that Trump believed that the election was stolen as an explanation for his continued flouting of that claim, including in the pre-riot speech on January 6. That would likely strengthen the free speech claim, to the extent that the Senate sees the “incitement” charge as a criminal charge requiring precise guidelines in accordance with Supreme Court decisions rather than a moral charge about a President’s duty to faithfully uphold the laws. But it’s nuts as a standalone pillar.

On Sunday evening, Trump’s office announced in a statement that Atlanta-based trial attorney David Schoen and Bruce L. Castor Jr., a former district attorney in Montgomery County, Pa., would lead his defense team. The two lawyers will bring “national profiles and significant trial experience in high-profile cases to the effort,” the statement said.

Schoen previously served as a lawyer for Trump adviser Roger Stone when he sought to appeal his conviction for lying and witness tampering in a congressional investigation. He also was in discussions with financier Jeffrey Epstein about representing him days before his death while awaiting sex-trafficking charges and has said he does not believe Epstein killed himself. During his time as district attorney, Castor had declined to prosecute actor Bill Cosby and was later sued by accuser Andrea Constand in a case that was settled.

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FILED UNDER: Donald Trump, U.S. Constitution, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    Does Trump not understand that he was impeached for inciting an insurrection?

    9
  2. Joe says:

    One might infer that Trump is admitting to inciting an insurrection by trying to prove that he was justified in doing so. “Of course they were angry and had a right to be and of course I sent them to fight to take back the stolen election.” I am not sure what other argument flows from his position.

    15
  3. gVOR08 says:

    Why is it insane to push the Stolen Election myth as a defense? What difference does it make? It’s a given the Republicans won’t convict. And legalistic arguments about what exactly constitutes incitement aren’t going to drive the base to lean on their senators.

    15
  4. Sleeping Dog says:

    Memo to the Manhattan DA, please indict him.

    5
  5. KM says:

    @gVOR08:
    The problem for the GOP is that they want to push the Stolen Election mythos without actually *doing* anything about it the same way they want to get the base riled up about abortion but still need it as a wedge issue. Crazy “logic” is still logic and there’s expected outcomes and results the voters want. Trump essentially claiming his actions were justified because of this nonsense forces them to take an official position from which MAGAts will then expect action. After all, how can you acquit him for trying to take back what’s his and then just let him not have it? If it wasn’t wrong to storm Congress because you thought POTUS was being cheated, why is he not still POTUS and why is everybody still going to jail? It’s only going to piss off the base even more and confirm their Congresscritter is Deep State. Even Lil’ Miss MTG is going to explain why Trump’s not Prez anymore if she votes to acquit as they think that’s the point of this.

    They’re trying to appease the crazies but you *can’t* – they’re crazy! Unless their fantasies get met, you have failed them and they’re not going to just accept appeasement anymore. Anyone who’s clung to it this far isn’t going quietly into the night to sit in the fringes anymore. We’re going to see a ton of GOP primaried by QAnons in the next two years specifically because they didn’t declare Trump King at this trial. They don’t want him acquitted – they want him to WIN and that’s not on the table.

    15
  6. Joe says:

    @KM:
    Detail: MTG is a representative and therefore has no vote in the Senate trial. She already voted against impeachment.

    5
  7. Daryl and his brother Darryl says:

    The sad fact is that Trump could piss in the mouth of each and every Republican Senator and they would still choose to defend him.
    So there is no down side to Trump pushing the Big Lie, and the upside is that he will get the best platform left to him to continue lying and raising money of the lie.
    Democrats will need to figure out how to control the proceeding extremely tightly, something they are pathetically bad at.

    5
  8. MarkedMan says:

    but one that enough Senators to deny conviction have already signified by their vote they agree with

    James, I agree almost entirely with what you wrote, but just want to pick a nit here. I don’t think there is a single GOP Senator that has any meaningful opinion on the constitutionality of this. It’s an excuse to not confront their base, and if it wasn’t this excuse they would find another.

    12
  9. Teve says:

    @stevebenen

    Funny: Ahead of his impeachment trial, Trump can’t maintain a competent legal defense team.

    Not funny: Trump could dispatch a fringe law-school student to present a defense using finger puppets and Senate Republicans still wouldn’t vote to convict.

    16
  10. KM says:

    @Joe:
    You and I know that – does the average QAnon? They think Trump is still POTUS somehow!

    Again, we’re not the target audience here. Neither is it the conservative like James who knows this is BS. It’s the ignoramus who adore folks like Trump and MTG specifically for their loud interjections of opinions where they have no business being. Considering also that she is suspect in the Jan 6th insurrection itself, she *will* be talking about it and latching onto this for attention like a lamprey. It’s gonna be a scene and she’ll want in. Don’t be surprised if a contingent of dumber House GOP demands to be seated because “they have a right to be there!!!” during the Senate trial.

    1
  11. Scott says:

    From Politico on one of Trump’s new lawyers:

    “Mr. Schoen has represented a wide range of clients, from mobsters to political figures to Mr. Stone. In an interview with The Atlanta Jewish Times in September, Mr. Schoen said of his casework, ‘I represented all sorts of reputed mobster figures: alleged head of Russian mafia in this country, Israeli mafia and two Italian bosses, as well a guy the government claimed was the biggest mafioso in the world.’”

    I guess Trump is not much of stretch for this guy. And given his work with Russian mobsters, he may have already been across the table from Trump.

    2
  12. dmichael says:

    Just as he saw his presidency as a reality TV show, Trump sees the impeachment trial as a show that will garner him attention and money. He knows that the Republican senators won’t vote in sufficient numbers to convict him. It is simply “show time.” You all are treating this as a rational strategy underpinned by the Constitution. The House managers in the trial must get Senator Leahy to exclude all irrelevant issues which WILL be raised by Trump’s lawyers. If it will be, as I believe, a show, the managers must produce it for prime time.

  13. drj says:

    @dmichael:

    Just as he saw his presidency as a reality TV show, Trump sees the impeachment trial as a show that will garner him attention and money.

    “You’re damned right I ordered the Code Red!”

    I mean, he is going to do it, isn’t he?

    1
  14. CSK says:

    Is Trump’s insistence on presenting what I can only call a non sequitur defense a way of gearing up his fans to stage another attempted coup on the day the impeachment trial begins in the senate?

    6
  15. dazedandconfused says:

    @Teve:

    So true. And, I believe the nut of the matter. Trump has little reason to fear conviction, his base is still amped up and the Rs are nearly all terrified of their wrath. Even though the vote on unconstitutionality was only to debate that issue, to much of the media, and probably by Trump, it was taken as assurance there are 45 senators against conviction, no matter what. Lacking any fear of being banned from running for office again, Trump views the senate trial as an opportunity to reinforce the gaslighting. Why not?

    3
  16. gVOR08 says:

    @Scott: If Putin refers you to a lawyer you probably gotta hire him.

    2
  17. Scott F. says:

    @KM:

    Unless their fantasies get met, you have failed them and they’re not going to just accept appeasement anymore. Anyone who’s clung to it this far isn’t going quietly into the night to sit in the fringes anymore.

    Yet, as your abortion example demonstrates, you can keep a wedge issue going for decades if you play it right. So, any ground conceded is the start of a slippery slope and therefore any concession is as good as giving it all away. If abortion isn‘t murder, then “rare but safe” becomes a reasonable middle ground and the next thing you know women can have domain over their sex lives again.

    So, it must be the Stolen Election mythos. There is no other sustainable way to maintain the long con. If Trump wasn’t cheated, then he lost fairly and there is no existential threat and it’s the man, his policies and his ideas that are unpopular. But, the Stolen Election can be explained (with crazy logic as you note) as being thwarted – despite the efforts of the well-placed Q and the mighty Trump – because the Deep State is more deeply embedded, more widely spread, more dangerous, and more powerful than they’d feared. No adjustments in policy positions are necessary. What is needed is more money to grow the movement by winning over (or destroying) the sheeple.

    James is right that Trump’s rationale defense would focus on timing and the parsing of his words and intent. But, since that defense is likely unnecessary with a supplicant GOP, then Trump’s focus gets to be on maintaining some remnants of the Big Lie. And it appears the GOP has decided the Big Lie is more valuable to them than ridding themselves of Donald, The Destroyer of the Republican Establishment.

    3
  18. Or more simply, this is a means of Trump asserting and exerting dominance over the entire GOP — I’m going to say ridiculous things that I know you disagree with, and you’re going to sit there, smile, nod and agree with me.

    Bitch Slap politics (using Josh Marshall’s term) and basic Authoritarianism 101

    5
  19. Jim Brown 32 says:

    @gVOR08: Its an infomercial to raise money. Its always the money-making angle with Trump and Co.

    3
  20. James Joyner says:

    @MarkedMan:

    I don’t think there is a single GOP Senator that has any meaningful opinion on the constitutionality of this. It’s an excuse to not confront their base, and if it wasn’t this excuse they would find another.

    I don’t know whether it’s literally true that not a single one legitimately objects on Constitutional grounds but we agree that most are using it as cover. But it’s irrelevant from the standpoint of my analysis: it’s an argument that they’re proven to respond to favorably.

  21. Michael Reynolds says:

    Trump knows this impeachment trial is dangerous. Republican Senators dearly want to say, ‘Yes, that was bad, but hey it’s moot.’ That’s their happy place. But that is censure by another name, Trump will be the bad guy who got off on a technicality. It would be dismissive of this central claim of a stolen election and he needs that lie to raise money and hold power.

    From Trump’s point of view he’s right to continue to push the lie.

    2
  22. gVOR08 says:

    @Scott F.: Yes. Abortion is far more valuable to the GOPs as an issue than as an accomplishment. If they were good politicians they’d promise, but carefully refrain from delivering. But as the inmates take over the asylum, they may actually try to overturn Roe v Wade.

    1
  23. Michael Reynolds says:

    @gVOR08:
    They will kill Roe v. Wade. Then we’ll see the brilliance of federalism in full, 50 states with 50 different sets of laws, so a practice subsidized by one state might mean a prison sentence in another. Six inches this way: no problem! Six inches the other way: Prison! Brilliant.

    One more stupid conservative shibboleth. Is there anything conservatives believe that isn’t stupid? Anyone?

    10
  24. Joe says:

    While I certainly don’t want the impeachment managers to run this as a show trial, I certainly hope they have some high caliber TV producer consultants to anticipate and explain to them how Trump will be coming at this.

    1
  25. DrDaveT says:

    @Michael Reynolds:

    From Trump’s point of view he’s right to continue to push the lie.

    Yep. And from America’s point of view, we’re right to force every member of the Senate to go on record regarding whether the election was stolen or not. If the GOP Senators say no, America wins. If they say yes, the battle is out in the open and can be won. Letting them signal “yes” to their base and “no” to the nation without saying either out loud is the worst possible outcome.

    6
  26. SKI says:

    @Michael Reynolds:

    They will kill Roe v. Wade. Then we’ll see the brilliance of federalism in full, 50 states with 50 different sets of laws, so a practice subsidized by one state might mean a prison sentence in another. Six inches this way: no problem! Six inches the other way: Prison! Brilliant.

    This is why I want to kill the current version of the filibuster. At its heart, it protects the the politicians from their own rhetoric and promises – for good and bad. It ensures the voting public don’t get to weigh the outcomes of proposed policies because the policy promises never happen. There is a reason the Tories haven’t gotten rid of the NHS (though they have made it less efficient and effective). Our parties are protected from their own culpability because nothing gets done.

    3
  27. dazedandconfused says:

    @gVOR08:

    “In America, you pick lawyer…”

    Trump using the impeachment trial as a gaslighting PR event carries a certain small risk of backfire. Even the GOP can have a gag reflex, way back there somewhere. Allowing Trump to suck off GOP donor$ to fund his business debts?? He damn sure didn’t share the wealth in the Georgia race. Senators, most senators, have to exert themselves mightily to raise enough to fund their campaigns. There are thin-ice aspects to Trump’s game.

    “The Edge… There is no honest way to explain it because the only people who really know where it is are the ones who have gone over.” ― Hunter S. Thompson

    1
  28. Teve says:
  29. Just Another Ex-Republican says:

    I hope the impeachment managers base their case on a whole lot of audio and video from the 6th, without a lot of speeches. Keep it simple and remind the GOP of how scary and upsetting it was.

    And I hope Trump gets his wish and presents his defense personally, about how he was robbed and that means everything being shown was fine and not his fault. He can’t open his mouth without infuriating most Senators. The angrier they are with Trump, the better.

    Besides, the chair can probably poke Trump and his team into a fury simply by repeating the fact that the Senate already voted, by 93-7 including most Republicans, to accept the electoral results. That’s not the issue of the trial. Trump will go apeshit screaming at Republicans and demanding they change their mind or some such nonsense.

    1
  30. CSK says:

    @Just Another Ex-Republican:
    If the impeachment case is “apples” and Trump is on the senate floor screaming “oranges,” at least a few of his followers might begin to have second thoughts about him. Not many, mind you. But a few.

    3
  31. Michael says:

    @KM: In my 50 years of following politics, I have never seen a candidate win any election that didn’t campaign. If you all wanted to disprove election fraud, why didn’t they turn over the ballots and voter machines for a forensic audit to prove there was no fraud. By this simple action, it would have solve the issue of election integrity. But they didn’t, that’s because there was fraud. Not to mention, all the affidavits that claim voter irregularities. Who in the right mind would elect a person who belongs to a party that is immoral by promoting child sacrifice, legalization of narcotics, legalization of prostitution, censorship, free for all immigration and job losses throughout the country ? I seem to recall that he took an oath of office to protect the constitution and protect from all enemies both foreign and domestic, but I think he doesn’t believe that it applies to himself. I think he needs to be impeached for all those executive orders he passed. Bypassing the legal representation of you and me, by not allowing us to vote on these orders. Sounds like a dictator to me. Just think, now you will have to worry about your daughter killing her baby, not by giving her a choice to do whatever she wants with her body, the choice should be weather to lay with a man or not. Also, if you didn’t kill them, worry about your children becoming addicted to all sorts of narcotics ruining there life and family. Meanwhile, wondering if you spouse is truly at a business meeting or getting his grove on with some hoe because it will be easier to do. Or, no longer having a voice because you disagree with their party line. Also, trying to determine that your vote really counted in any election or are other things going on that shouldn’t. Afterall, one fraudulent vote in an election is one too many. Finally, competing with people who do not belong in this country legally while not having enough good paying jobs for the citizens of this country. This is the result of voting Democratic, is this how you really want to live ? Don’t ever believe that Biden is a Christian. After all, the bible states “You will know to whom they belong by the works they do.” God help us all.

  32. Captain Haddock says:

    @CSK: Would love to see some evidence of that insurrection. Meanwhile, hereistheevidence.com for you

  33. Just nutha ignint cracker says:

    On my way back from Portland for an ultrasound exam, I had the opportunity to listen to Rush for a bit (and a little Rush goes a loooooooonnnngg way, btw). At the hour I was listening to the focus seemed to be “why should Trump have to acknowledge that the election was fair. No one else has ever been forced to acknowledge election results.” The other parallel topic was that January 6 was a nothing burger because the protesters didn’t accomplish anything–the outcome was recorded, Biden was inaugurated, the only forces interfering with anything were the troops stopping people from coming to the event.

    I know I shouldn’t be rooting for cancer, but still…

    2
  34. CSK says:

    @Just nutha ignint cracker:
    Well, the protesters managed to accomplish the deaths of five people.

    2
  35. Mikey says:

    @Just nutha ignint cracker:

    At the hour I was listening to the focus seemed to be “why should Trump have to acknowledge that the election was fair. No one else has ever been forced to acknowledge election results.”

    No one else has ever had to be.

    2
  36. CSK says:

    David Schoen claims that he will NOT be arguing election fraud at the trial, but rather the constitutionality of impeaching and convicting a private citizen.

    I wonder how long he’ll last?

  37. gVOR08 says:

    @CSK:

    Well, the protesters managed to accomplish the deaths of five people.

    Think how much worse it could have been if DC didn’t have strict gun laws.

    1
  38. CSK says:

    @gVOR08:
    Some of them seem to have ignored those laws. Second Amendment rights, you know.

    1
  39. Mister Bluster says:

    @CSK:..David Schoen claims that he will NOT be arguing election fraud at the trial, but rather the constitutionality of impeaching and convicting a private citizen.

    I’m sure you know this but apparently Mr. Schoen needs to be told:
    TRUMP WAS THE PRESIDENT WHEN HE WAS IMPEACHED FOR THE SECOND TIME. THE IMPEACHMENT IS OVER!

    Probably got his Law Degree at Wossamotta U.

    1
  40. CSK says:

    @Mister Bluster:
    Yup. But I’ve seen Trumpkins stoutly maintain that Trump was never impeached. They might mean by that that Trump was never convicted and removed from office, and maybe this fool does as well. Who knows?

  41. Mikey says:

    @Mister Bluster: I’m sure Mr. Schoen knows exactly when Trump was impeached and what it means, but he’s Trump’s lawyer, so he’ll do his best to sow misinformation and create doubt.

    1
  42. al Ameda says:

    Basically Trump is telling us that he doesn’t care what the impeachment charge is, and he correctly believes that neither do his supporters nor the emasculated Republican Senators.

    This will be another opportunity for Trump to air grievances and keep the (new Republican) base on fire. He’s skated his entire life: this Trial, though necessary, will not result in a c0nviction.

    1
  43. Donna ciano says:

    We’re you watching the crazy after President Trump beat Hillary. You people see only what you want to see……do you remember women running around in “pu**y hats”. Crying like 3 year old , ALL BECAUSE OBAMA was trying to cover up HILLARYS e-mail mess. He had the FBI spying on the man before he was even sworn in. What a bunch of hypocrites!