Last Updated on February 10, 2021
Those following the U.S. Senate impeachment trial of President Donald Trump, including with the analysis here on these pages, deserve some clarification and a partial apology.
In such analyses, I warned that the impeachment trial would be like running the Super Bowl in only 5 minutes. I warned that the very best of NFL football players would be slipping all over the field, rolling over each other, if they tried to squash a football game into 5 minutes.
Like that, smashing a two to four week trial down into a few half days can never be done elegantly or properly. President Trump’s new lawyers only joined his team about ten days ago. I warned that a case of this complexity and magnitude would normally have preparation of six months to eighteen months to develop the information, do “discovery,” and prepare legal and factual arguments. A case could possibly require many years. I am in a case that is relatively simple that has been pending for trial since 2017.
Nevertheless, President Donald Trump needs to immediately add better lawyers to his defense team. It is too late for President Trump to entirely change his legal defense team. He can’t disconnect in the middle of a trial from the lawyers he has, considering support staff handling exhibits and links to evidence are 80% of the work.
But for the next phase on whether he is guilty of inciting insurrection, they need to hand the microphone to different lawyers. Notice that in the last annual impeachment, various topics were handled by different lawyers. It wasn’t just two lawyers, but more than half a dozen attorneys who all spoke.
President Trump’s new, recently-appointed impeachment attorneys were absolutely dreadful in the start of the trial on February 9, 2021. They were arguing for the dismissal of the trial because it very clearly violates the U.S. Constitution. But the attorneys David Schoen and Bruce Castor were awful.
President Trump does not need to remove his existing lawyers, who are already deep in the planning for his defense.
Instead, President Trump must add more, better lawyers who are assigned to different topics, different aspects of the overall defense. The existing lawyers can simply hand the microphone over for specific segments of the trial to lawyers like Joe diGenova, Victoria Toensing, Larry Klayman, Cleta Mitchell, or Jay Sekulow. Considering many of these lawyers cut ties with President Trump following the Capitol Hill protests on January 6, I am offering the President my services.
Famous Law Professor Alan Dershowitz, trying to be nice, was clearly baffled, saying on NewsMax TV:
A short time after attorney Bruce Castor began Trump’s defense Tuesday afternoon, Dershowitz questioned the lawyer’s style on “American Agenda.”
“There is no argument; I have no idea what he’s doing,” Dershowitz told co-hosts Heather Childers and Bob Sellers. “I have no idea why he’s saying what he’s saying.
“He’s introducing himself: ‘I’m a nice guy; I like my senators; I know my senators; senators are great people.’ C’mon, the American people are entitled to an argument, a constitutional argument.”
Famous Law Professor Jonathan Turley, live-tweeting the impeachment trial, tweeted at 4:00 p.m.:
…The defense has eaten roughly half of its time without landing a glove on the constitutional questions. Schoen was said to be the one who would present an “erudite” analysis of the constitutional issue.
As a result of the poor legal performance, President Trump lost the support of Louisiana U.S. Senator Bill Cassidy (R-La.), who specifically blamed the poor presentation of Trump’s attorneys. Cassidy had previously voted with Rand Paul to find the trial unconstitutional.
An anonymous Trump aide told Politico:
“President Trump was not happy with the performance of his legal team in action,” said one of the people familiar with his thinking.
Regarding Castor’s meandering into anecdotes and folksy language, the aide told Politico:
“This is about lowering the temperature from the Democrats’ emotionally charged opening argument before dropping the hammer on the unconstitutional nature of this impeachment witch hunt”
And that was obvious. Castor was trying to build a fire wall between the incendiary rhetoric of the Democrats just concluded and a calmer, more rational presentation that he wanted to transition to.
The problem: Castor didn’t actually do that. He sounded like he was delivering a speech among friends at a 4-H chicken dinner. He never brought down any hammer. He spent way too much time trying to be liked, and almost no time trying to win.
As a litigation attorney who has been in such situations, I believe that the excellent trial brief filed on Monday, February 8, 2021, was not written by the attorneys at the microphone, Schoen and Castor. I believe that junior attorneys actually wrote the powerful brief which was then signed and filed by Castor, Schoen, and van der Ween.
I have often written briefs in the U.S. Supreme Court which were signed by other, senior attorneys. I have written dozens of lawsuits and pleadings within lawsuits that were signed by other attorneys, not by me.
Fortunately, those attorneys have presented the issues as well or better than I would have in the actual court room. That didn’t happen yesterday for President Trump.
It sounded in the Senate trial like Castor and Schoen (van der Ween should have spoken since there was unused time) did not know their own brief. They emphasized things that the brief minimized. They just lightly touched on things that the brief covered in detail. They addressed issues in a completely different order. Castor played a folksy “I’m you” country bumpkin lawyer and Schoen ended with – oh my gawd – poetry. President Trump should not be convicted, because…. poetry. That might work in a country courtroom, but not in a partisan political sand storm.
The attorneys spoke like they had barely read the brief they had signed and filed the day before. President Trump should find out who are the junior attorneys who actually wrote the excellent February 8 brief on his behalf. Trump should let those junior attorneys argue in the Senate trial instead of their bosses. That would be very awkward to demand that the people who did a great job on the brief be identified and the weak involvement of their bosses be exposed. But President Trump is the client.
In public, again, this need not be awkward because the last impeachment involved many attorneys dividing up the defense, addressing different segments. The microphone could merely be handed to the attorneys who actually wrote the briefs without negative comment and let them run with it. Those who are deeply familiar with a case will do better than their supervising attorneys.
Articles here at National File explained how President Trump’s team put forward excellent, powerful arguments in their two briefs. What the Democrats are trying to do is a “Bill of Attainder” absolutely forbidden by the U.S. Constitution. Trump’s defense lawyers did manage to mumble out the fact that the the proceedings are unconstitutional as a Bill of Attainder.
That means that if President Trump were ever disqualified from holding future political office — extremely unlikely — the loss of his rights would be challenged in court. The deprivation of Trump’s rights would be invalidated in the courts because it is a Bill of Attainder.
In trying to explain this absolute prohibition to some opinionated people, we discover that some people are confused. The courts in the law are very clear that the title at the top of a legal document does not matter, does not count. The headings in a legal document do not matter.
A Bill of Attainder does not need to say “Bill of Attainder” at the top of the document or in its body to be a Bill of Attainder. The law is governed by what a document does, not by what it is called. The Democrats’ attempted impeachment conviction of President Trump is a prohibited Bill of Attainder because of the substance of what it does, not what it is called.
Impeachment in the USA — in sharp contrast to thoroughly irrelevant British precedents — is limited to removal of a public officer. Unlike England, our Constitution sharply separates prosecution of a civil officer after leaving office and exclusively delegates criminal prosecution to the ordinary Article III courts. We know that impeachment of a former civil officer is not constitutional because the Constitution specifically devotes that power to the Judiciary Branch.
Democrats have spent every hour lying and saying that the Constitution has to allow punishment by Congress of a former President because otherwise a President could escape all accountability. Not true. Total lie.
The Constitution explicitly places the power and responsibility in the courts to prosecute any criminal misconduct. Thus, the Constitution has taken away that power from the Congress. Congress must keep its grubby mitts off of the question of holding a former official “accountable.” That is the exclusive realm of the courts.
Because this impeachment trial is only focused on punishing a private citizen by a legislative act without a judicial trial, it is a Bill of Attainder. A normal impeachment removes a civil officer from office. Here, that can’t be done because Trump’s term reached its normal conclusion on January 20, 2021. So the Democrats are using it exclusively as a Bill of Attainder
So these were and are powerful arguments made by Castor, Schoen, and van der Ween in their briefs. But they bungled those arguments when made verbally in the well of the U.S. Senate.
But I also warned that most attorneys do not know how to do political litigation. This is not what lawyers do. Being inexperienced at political fights, lawyers don’t do it very well. I warned that most attorneys are really not all that brave. So it was left unknown whether Trump’s attorneys would show up and deliver on the potential raised by their briefs. As it happens, they didn’t.
One of the other problems is that many of the best attorneys have conflicts of interest. Or they think they do. The tsunami of unfounded attacks on President Trump by the Left for years means that many attorneys have been hired on related issues to defend Trump’s team. They think they have conflicts of interest, although I think that is a stretch.
I have friends and family fretting, “Why can’t Trump find good lawyers?” Well, Mr. President, I will gladly clear my schedule.