Over the weekend, the legal team that was to represent Donald Trump at the impeachment trial resigned. According to this report, the lawyers on that team did not want to argue that Trump won the election. Instead, they wanted to focus on arguing that impeaching a president who has already left office is unconstitutional.
To me, such a focus would be bad lawyering. Good lawyering would be to argue in the alternative: A former president cannot be impeached, but even if he could be, this former president committed no impeachable offense.
Moreover, good lawyering would focus on the second these arguments, not the first because (1) enough Senators (45 of them) have already signed on to the first argument and (2) that argument is a technicality and therefore less than fully satisfactory to the client.
But wouldn’t arguing that Trump won the election in the context of this impeachment trial be tantamount to attempting to justify the rioting? That’s the view of Steven Vladek, a law professor. He tweeted:
By insisting that his lawyers argue to the Senate that the election really was “stolen,” Trump isn’t just refusing to contest the actual ground on which he was impeached (that he incited the violence on January 6); he’s effectively arguing that the violence was justified.
The answer to both my question and Vladek’s is “no.” The article of impeachment includes this allegation:
President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud. . . .
Thus, the door is wide open for Trump to argue that the statements he made about the election aren’t false. Indeed, the burden should be on the House managers to prove that the statements are false — something I doubt they can do (just as I doubt Trump can prove his statements are true).
A better defense might be to argue that it’s not impeachable to state one’s opinion about whether an election was stolen and whether the result of the election should be “accepted” as the fair and just outcome. But again, one can argue in the alternative as follows: It’s not impeachable to exercise one’s free speech rights in the manner that Trump did and, in any case, Trump’s statements weren’t false.
With the door thus open to arguing that the election was stolen, Trump still faces the problem of finding lawyers to make the argument. The problem is exacerbated by assertions by mainstream media organs, Never Trumpers, and bar association grandees that, somehow, it’s improper for lawyers to make election fraud arguments on behalf of the president.
It’s okay, and even commendable, for lawyers to represent 9/11 terrorists and all manner of rapists and murderers, but beyond the pale to represent a president who wants to question whether Joe Biden was fairly elected. My quaint view of these matters is that all of the above should have vigorous representation. No lawyer should be required to provide that representation, but neither should any lawyer be discouraged from, or be criticized for, providing it.
Democrats and their media allies are trying to make an affirmation that Biden won the election fair and square into the equivalent of a loyalty oath. George Stephanopoulos’ embarrassing attempt to extract such an affirmation from Rand Paul is a good example.
The attempt is working in the sense that many among the elites are being cowed. In fact, according to this report, the new lawyers Trump has found for the impeachment trial aren’t willing to make the election fraud argument, either.
But I doubt that attempts to take election fraud arguments off the table are working in the sense of persuading the voters (many millions of them) who believe the election was stolen that actually it was not. In fact, efforts to end debate by fiat are likely to be counterproductive if the goal is to persuade.