Former President Donald Trump announced Saturday that he had fired the five lawyers who had agreed to be his defense team in the upcoming Senate trial for inciting an insurrection on January 6. Late Sunday, Trump’s office in Florida announced that two new lawyers, David Schoen and Bruce L. Castor Jr., had agreed to take the case.
The abrupt change in the legal team was reportedly driven by Trump’s demand that his lawyers defend his actions on January 6 by claiming that the 2020 presidential election was stolen by the Democrats. The first legal team balked and pressed for Trump to confine his defense to arguments that the Senate trial of an ex-president, now a private citizen, would be unconstitutional.
According to the New York Times, “Mr. Trump had pushed for his defense team to focus on his baseless claim that the election was stolen from him, one person familiar with the situation said. A person close to Mr. Trump disputed that that was the case but acknowledged that there were differences in opinion about the defense strategy.”
CNN reported, “Trump wanted the attorneys to argue there was mass election fraud and it was stolen from him rather than focus on proposed arguments about constitutionality.”
It is not clear whether the divisions within the Trump camp on legal tactics have been resolved, or whether the new legal team has agreed to put forward Trump’s lies about a stolen election as part of the Senate trial.
The statement announcing their appointment referred only to the constitutional claim and made no reference to the 2020 election. “Schoen has already been working with the 45th President and other advisors to prepare for the upcoming trial, and both Schoen and Castor agree that this impeachment is unconstitutional—a fact 45 Senators voted in agreement with last week,” the press release says.
The two new lawyers are both well established litigators with close political ties to the Republican Party. Schoen has represented civil rights groups and victims of police violence, among his many clients, but recently represented Trump crony Roger Stone in his criminal trial for perjury. It is likely that Stone put Schoen in contact with Trump. Schoen is a board member of the Zionist Organization of America, one of the most right-wing pro-Israel lobbies.
The other lead attorney, Castor, was district attorney of Montgomery County, Pennsylvania, for eight years (2000–2008), and has been active in state Republican Party politics for two decades. He is best known for a case he declined to prosecute, the sexual abuse and rape charges against comedian and actor Bill Cosby. The controversy over this decision contributed to Castor’s defeat in a 2015 election in which he sought to return to office as district attorney.
Four of the five lawyers who parted ways with Trump on Saturday were from South Carolina: Butch Bowers, Deborah Barbier, Greg Harris and Johnny Gasser. The fifth, Josh Howard, was from North Carolina.
The team from the Carolinas was assembled under the auspices of Senator Lindsey Graham of South Carolina, after the attorneys who represented Trump in his first impeachment trial apparently declined to take his second one. These included then-White House Counsel Pat Cipollone, his deputies Patrick Philben and Eric Herschmann, and Jay Sekulow, a longtime legal activist for Christian fundamentalist groups.
Trump’s switching of legal teams on the eve of the Senate trial is clearly a sign of crisis. The new lawyers must prepare a rebuttal brief against the charges brought in the House impeachment and submit it by Tuesday morning, one week before the scheduled beginning of the Senate trial on February 9.
While the press announcement claims that 45 Senate Republicans have embraced the view that it is unconstitutional for the Senate to try an ex-president, that is technically not accurate. Senator Rand Paul brought a constitutional point of order on that issue, and Senate Democrats moved to table it. The 45 Republicans voted against tabling, not directly to uphold the substance of Paul’s motion. At least two of the 45 claim they are still open to convicting Trump, although that would still leave the number of votes for conviction at 57, 10 fewer than required.
Nevertheless, the overwhelming vote of Senate Republicans to quash the Senate trial is a clear demonstration of support for Trump and makes an acquittal in next week’s impeachment trial all but certain.
There are well established precedents for trying Trump after he leaves office. The US Senate has done so in the past, for cabinet officials and judges if not presidents. The most famous case of impeachment, well known to the Founding Fathers at the time they wrote the Constitution, was against Warren Hastings, British governor-general in India, who was impeached two years after leaving office and acquitted seven years later.
Trump’s demand that his defense should argue that the 2020 election was stolen is extraordinary, since it means embracing the claim that was the driving force of the insurrection of January 6, for which Trump was impeached. But Trump is not playing by the rules set by the US Constitution or conventional politics. Even before the election, his orientation was to inciting his supporters against the political system as a whole and building a fascist movement centered on his role as an authoritarian leader.
He knows that he has the support of the bulk of the Republican Party, which has become an incubator for fascist politics and the integration of far-right forces into the political establishment. And he knows that he has nothing to fear from the Biden White House or the Democratic Party, both of which continue to plead for “unity” and “bipartisanship” despite the GOP’s uniting behind the architect of the attempted seizure and likely murder of Democratic lawmakers and overturn of the results of the 2020 election.
Just as significant as Trump’s firing of his attorneys is his demonstrative support for Republican Representative Marjorie Taylor Greene, the fascist from Georgia, who has been widely condemned for social media postings calling for the assassination of House Speaker Nancy Pelosi and the execution of Barack Obama and Hillary Clinton.
In addition to advocating for the fascist QAnon conspiracy theory, Greene has claimed that the massacres at Sandy Hook elementary school in Connecticut and Marjorie Stoneman Douglas High School in Florida were staged, and that the 2019 massacre at a New Zealand mosque was a “false flag” operation rather than a fascist atrocity motivated by anti-Muslim bigotry. She is also a 9/11 “truther,” claiming that no airliner crashed into the Pentagon on September 11, 2001, and that the US government and military covered up an alleged missile strike for incomprehensible reasons.
Several House Democrats are putting forward a resolution to expel Greene, which under parliamentary rules must be voted on this week. In advance of that vote, which requires a two-thirds majority to pass, or a lesser action like censure, which requires only a majority, Greene tweeted that she had a telephone conversation with Trump in which the former president backed her to the hilt.
Greene posted on Saturday: “I’m so grateful for his support and more importantly the people of this country are absolutely 100 percent loyal to him because he is 100 percent loyal to the people and America First.”