WASHINGTON – Former President Donald Trump’s legal team are expected to use an argument at his impeachment trial next week that is already supported by the majority of Senate Republicans in charge of his fate: That the trial is unconstitutional because Trump is no longer the commander in chief.
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But still unclear is whether they’ve entirely jettisoned Trump’s allegations of election fraud, an issue that led to a rift with Trump’s prior legal team.
Trump and his first set of lawyers parted ways over trial strategy over the weekend. The former president wanted to emphasize “voter fraud” issues during the trial, said a person familiar with the legal discussions. But the original attorneys wanted to stress that the Senate should not hold a trial of a former officeholder, and that Trump’s comments during a Jan. 6 rally did not incite the mob that led a deadly riot at the U.S. Capitol.
While Trump’s new team says fraud isn’t at the center of their arguments, they’re not closing the door on them.
Trump announced Sunday evening that David Schoen, a criminal defense attorney who works in Alabama and New York, and Bruce Castor Jr., a former district attorney in Pennsylvania, would lead his defense.
Schoen, in an interview with The Washington Post Sunday evening, offered some insight on the path forward, saying he planned to focus on the “weaponization of the impeachment process” and would not argue the president’s claims of voter fraud.
“I am not a person who will put forward a theory of election fraud,” Schoen told the Post. “That’s not what this impeachment trial is about.”
Schoen told Sean Hannity of Fox News on Monday night that the trial is unconstitutional and nothing more than an effort to prevent Trump from running for president again. “This is the political weaponization of the impeachment process,” he said.
Schoen also called the trial “the most ill-advised legislative action that I’ve seen in my lifetime.”
Trump political adviser Jason Miller said “the focus will be on the Democrats’ unconstitutional push to remove a President who is no longer in office.”
Speaker of the House Nancy Pelosi, D-Calif., leads the final vote of the impeachment of President Donald Trump, for his role in inciting an angry mob to storm the Congress last week, at the Capitol in Washington, Jan. 13, 2021.
President Trump speaks during a rally protesting the electoral college certification of Joe Biden as President in Washington on Jan. 6, 2021.
Pro-Trump rioters stand on the West front of the U.S. Capitol building during the Jan. 6, 2021 insurrection.
Police with guns drawn watch as pro-Trump rioters try to break into the House Chamber at the U.S. Capitol on Jan. 6, 2021, in Washington.
People gather at the base of the U.S. Capitol with large IMPEACH and REMOVE letters on Jan. 12, 2021 in Washington, DC. The group is calling on Congress to impeach and remove President Donald Trump on the day that Democrats introduced articles of impeachment in response to Trump’s incitement of a mob entering the U.S. Capitol Building on Jan. 6.
Photographer take pictures of the article of impeachment against President Trump during an engrossment ceremony after the House of Representatives voted to impeach him at the Capitol, Jan. 13, 2021, in Washington, DC.
Impeachment managers (L-R) Rep. Madeleine Dean (D-PA), Rep. Eric Swalwell (D-CA), Rep. David Cicilline (D-RI), Rep. Jamie Raskin (D-MD) and others walk through Statuary Hall while heading to vote to impeach President Trump for the second time in little over a year in the House Chamber of the U.S. Capitol Jan. 13, 2021 in Washington, DC. The House voted 232-197 to impeach Trump on the charge of Òincitement of insurrection” after a mob attacked the U.S. Capitol where Congress was working to certify the Electoral College victory of President-elect Joe Biden on Jan. 6. 10 Republicans voted to impeach.
Majority Leader Steny Hoyer (D-MD) (R) and Assistant Speaker Katherine Clark (D-MA) (L), alongside House Impeachment Managers (from L) Representatives Joe Neguse (D-CO) and Eric Swalwell (D-CA), look on as Speaker of the House Nancy Pelosi (D-CA) prepares to sign the article of impeachment during an engrossment ceremony after the US House of Representatives voted to impeach President Trump at the US Capitol, Jan/ 13, 2021, in Washington, DC.
An image on a monitor shows House Speaker Nancy Pelosi holding the articles of impeachment, as another monitor (R rear) shows President Trump speaking in a video, in the Brady Briefing Room of the White House in Washington, DC on Jan. 13, 2021.
Miller disputed reporting that Trump parted ways with his first set of attorneys because he wanted them to relitigate his baseless concerns of voter fraud.
When asked how much of a role Trump’s election fraud claims might play in the impeachment trial, he said, “Our upcoming legal briefs will give a clearer and more comprehensive overview.”
Trump, who has been banned from most social media platforms, has remained virtually silent on the impeachment case that charged him with inciting an insurrection at the Capitol, which left multiple people dead. And largely so have the lawyers Trump has brought on to defend him over the weeks.
The new team appears to have a two-pronged strategy: Arguing the trial is unconstitutional and that Trump’s remarks about the election did not incite the deadly riot at the Capitol.
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House Democrats are expected to recite the history of Trump’s months of arguments questioning the legitimacy of the election, his call urging Georgia Secretary of State Brad Raffensperger to “find” votes to overturn the election of President Joe Biden and quotations from his speech Jan. 6 to the mob that later stormed the Capitol.
Trump is due on Tuesday to issue an official answer to the House’s impeachment article charging him with inciting an insurrection, a filing that could offer some insight into the former president’s defense strategy when the trial starts Feb. 9.
If Trump’s team argues the trial is unconstitutional, it would likely find a supportive group of Senate Republicans. Last week, 45 Republican senators voted against holding the trial on constitutional grounds, well more than enough votes for Trump to win an easy acquittal.
The impeachment case will mark a big test for both lawyers, who aren’t strangers to controversial disputes or representing high-profile figures but have never argued a case with such historical implications.
Castor drew headlines after he declined to prosecute comedian and actor Bill Cosby in 2005 on sexual assault allegations that years later sent Cosby to prison. He faced more scrutiny after telling a judge in Cosby’s case that he entered a secretive agreement to not file charges against the actor if he did not plead the 5th Amendment in a civil case from one of his accusers, according to The Philadelphia Inquirer.
Schoen represented Roger Stone, a key Trump ally who was convicted in connection with the investigation into Russian meddling in the 2016 election. Trump later commuted Stone’s sentence.
Schoen also met with disgraced businessman Jeffrey Epstein days before his death in 2019 to discuss taking the lead role on his defense team. Schoen told the Atlanta Jewish Times he agreed to take the role representing Epstein against allegations the financial mogul sexually exploited and abused dozens of girls.
Police with guns drawn watch as a mob tries to break into the House chamber at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.
Congress staffers barricade themselves after Trump supporters stormed inside the US Capitol in Washington, DC on Jan. 6, 2021. Donald Trump’s supporters stormed a session of Congress held today, January 6, to certify Joe Biden’s election win, triggering unprecedented chaos and violence at the heart of American democracy and accusations the president was attempting a coup.
Congress staffers barricade themselves after Trump supporters stormed inside the US Capitol in Washington, DC on Jan. 6, 2021.
A protester adorns a statue of President Gerald Ford with Trump paraphernalia.
Pro-Trump rioters protest inside the US Capitol on Jan. 6, 2021, in Washington, DC. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification.
Protesters gather outside the U.S. Capitol Building on Jan. 06, 2021 in Washington, DC. Pro-Trump protesters entered the U.S. Capitol building after mass demonstrations in the nation’s capital during a joint session Congress to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump.
Jacob Anthony Chansley, aka Jake Angeli of Phoenix, yells inside the Senate chamber on Jan. 6, 2021, in Washington, D.C. Congress held a joint session to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. Pro-Trump protesters entered the U.S. Capitol during mass demonstrations in the nation’s capital.
Protesters enter the U.S. Capitol Building on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results.
Protesters enter the U.S. Capitol Building on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results
A rioter holds a Trump flag inside the US Capitol Building near the Senate Chamber on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results.
A supporter of President Donald Trump sits inside the office of U.S. Speaker of the House Nancy Pelosi inside the U.S. Capitol in Washington, D.C., on Wednesday, Jan. 6, 2021.
Protesters enter the U.S. Capitol Building on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump.
Protesters enter the Senate Chamber on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump.
Rioters enter the Senate chamber on Jan. 6, 2021, in Washington, D.C.
A protester sits in the Senate Chamber on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump.
Protesters attempt to enter the U.S. Capitol building on Jan. 6 after mass demonstrations during a joint session of Congress to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump.
A protester is seen hanging from the balcony in the Senate Chamber on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. Pro-Trump protesters have entered the U.S. Capitol building after mass demonstrations in the nation’s capital.
A Capitol police officer looks out of a broken window as protesters gather on the U.S. Capitol Building on January 06, 2021 in Washington, DC.
Pro-Trump rioters roam under the Capitol Rotunda after invading the Capitol building on Jan. 6, 2021, in Washington, DC. Demonstrators breached security and entered the Capitol as Congress debated the 2020 presidential election Electoral Vote Certification.
Police hold back supporters of US President Donald Trump as they gather outside the US Capitol’s Rotunda on January 6, 2021, in Washington, DC. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification.
House of Representatives members leave the floor of the House chamber as protesters try to break into the chamber at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington. Rep. Jim Jordan, R-Ohio, is at center.
Police keep a watch on demonstrators who tried to break through a police barrier, Wednesday, Jan. 6, 2021, at the Capitol in Washington. As Congress prepares to affirm President-elect Joe Biden’s victory, thousands of people have gathered to show their support for President Donald Trump and his claims of election fraud.
U.S. Capitol police officers point their guns at a door that was vandalized in the House Chamber during a joint session of Congress on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results.
Supporters of President Donald Trump, including Jacob Anthony Chansley, aka Jake Angeli of Phoenix, center, who breached security enter the Capitol on Jan. 6 as Congress meets to confirm the 2020 presidential election.
Lawmakers say rioters failed in their attempts to disrupt democracy.
Supporters of President Donald Trump enter the U.S. Capitol as tear gas fills the corridor on Jan. 6, 2021.
A supporter of US President Donald Trump sits at a desk after invading the Capitol Building on January 6, 2021, in Washington, DC.
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The attorneys originally tapped to defend the Trump who split from the team include South Carolina lawyers Butch Bowers, Deborah Barbier, Greg Harris and Johnny Gasser, along with North Carolina lawyer Josh Howard.
Changing legal teams this close to trial “would normally be incredibly problematic,” said Ross Garber, an adjunct professor at Tulane Law School in New Orleans and an impeachment law expert. But a Senate vote last week showing little interest by Republicans in convicting Trump means the former president might not have to do much to be acquitted.
“At this point, conviction seems highly improbable,” Garber said. “Nevertheless, there could be curveballs that change the calculus. If that happens, Trump could be caught flat-footed. Also, the Senate and impeachment are new arenas for his new lawyers. It is not the traditional courtroom they are accustomed to, and the learning curve may be steep.”
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