Adversaries
Every defendant deserves representation. That is a basic tenet of our legal system. No matter how “bad” a person might be, not matter how apparently awful the act the accused may have committed, they still deserve representation. Even more, it’s how our system works. The American legal process is “adversarial”. One side presents a case, the other side presents their case, and the “adjudicating authority” determines which side is right. It might be a judge, it might be a jury.
So while it’s easy to say that someone did something so awful, so heinous, that they don’t “deserve” a defense; it simply doesn’t work that way. We need defense lawyers for axe murderers and child molesters – in fact, those defendants need them most of all.
In the American legal system we have “pro-bono” attorneys. They are appointed by the Court to defend those who can’t afford defense. And in bigger court systems there are even government funded public defenders. We pay them to take on the defense of those who cannot pay private attorneys.
There is one exception to all of this. A defendant can demand that they “defend” themselves. Lawyers (and judges) all know the maxim: a lawyer who defends himself has a fool for a client. But in the end, a defendant who is competent, and refuses representation, can proceed on their own.
Impeachment
For the second time in as many years, Donald Trump was impeached for “high crimes and misdemeanors” by the House of Representatives. In the first impeachment trial, Mr. Trump was represented by several lawyers. They included Harvard Law Professor Alan Dershowitz, former Special Counsel and Judge Ken Starr, and television lawyer Jay Sekulow.
The Constitutionally mandated impeachment and trial process is a “political” process, not necessarily governed by the standard rules of legal procedure. But Senate precedent has allowed for representation, and an opportunity to “put on” a defense in the trial. It’s “part of the process”, and a way that Americans will perceive that the process was “fair”.
Donald Trump faces an unprecedented second impeachment trial. All of American tradition and precedence assumes he will have representation and an opportunity to present a defense. But he’s got a problem – his defense team just quit, one week before the start of the trial.
Legal Ethics
From a legal standpoint, there are particular achievements that stand out. Arguing a case before the Supreme Court is one, and arguing a side (either side) in one of the four Presidential impeachment trials in American history is another. Yet this weekend, the lawyers representing former President Donald J Trump quit, leaving him without representation in this high-profile case. Lawyers above all understand the adversarial representation system. They are dedicated to it – from day one of Law School it’s both “preached” and “practiced”. To “abandon” a client before trial is a near breech of legal ethics. So what happened?
There is no reason to try to defend the former President from “incitement of insurrection” charges, nor dereliction of duty charges, nor even encouraging election fraud. Those may be the substantive charges that the House Impeachment Managers want to prove, and they are actions that may well be indefensible. But Trump’s attorneys won’t fight those battles. Better to stand on one legal point: jurisdiction.
Slam Dunk
The legal argument for Donald Trump is very straight-forward. It is the same “process” argument that earned forty-five votes in the Senate at the introduction of the House Impeachment resolution – that a trial of a former President, now a private citizen, is unconstitutional. In short, the Senate doesn’t have jurisdiction.
It’s an argument that most Constitutional scholars disagree with. Mr. Trump was still President, acting as President, when he was impeached. And the penalty for conviction includes more than just removal from office, but also a ban from holding office in the future. The Founding Fathers knew all about impeaching “former high officials”. It was done by the English Parliament they used as a model. And they also knew that banning a post-term impeachment would give a “get-out-of-jail-free” card for the last months of a Presidency.
But all of the Constitutional and precedential authority doesn’t really matter. Attorneys for the President aim to win their case and get the President acquitted. It requires only thirty-four Senators to vote for acquittal, and forty-five have expressed agreement with a “process” argument. In legal terms: this case is a “slam dunk”. The jury is already “rigged”.
Fool for a Client
We don’t know why these attorneys quit. But I’m willing to make a guess: their client, Mr. Trump, wasn’t willing to stand on the “process” defense. He wanted a full-throated defense of all of his actions, point by point, from the Michigan, Arizona and Georgia phone calls, to the “perfect” speech on the Ellipse on January 6th, to ignoring the frantic cries for help from the Capitol. And most importantly: he wants to make his claim that the 2020 Presidential election was stolen from him by widespread voting fraud.
And for his attorneys all of those arguments put their “slam-dunk” case in jeopardy. Republican Senators would be forced to face reality: there is no evidence of voting fraud, the President pressured election officials to “fix” the election in his favor, and that he then sent a crowd to attack the Capitol to stop the electoral vote certification. The evidence of Donald Trump’s guilt would be overwhelming, but more importantly, it would threaten the safe forty-five not guilty votes.
No attorney is going to use arguments that might convince the jury of the guilt of their client. And if their client demands they do so, the only reasonable thing for them to do is resign.
Pro Bono Defense
So if Mr. Trump can’t find a defense team – what is the Senate supposed to do? If they just go ahead and proceed with the trial, then it will be “unfair”, regardless that the lack of representation is the defendant’s own doing. If they delay longer, then all Mr. Trump has to do is NOT get a legal team, or keep firing them, and he’ll never be tried.
But just last night, two more lawyers have taken up “the challenge” of defending the former President. One, was a lawyer on the team for serial child molester Jeffrey Epstein. He joins a line of Trump lawyers who were involved in the Epstein case, including Dershowitz and Starr. The other was the District Attorney of Pennsylvania’s Montgomery County. His claim to fame: he refused to indict Bill Cosby for his sexual predations.
They indicate that Mr. Trump will now fall in line with the “process defense”. But we know Donald Trump. Even when he “changes his mind” and seems to do the prudent thing, it doesn’t mean he’ll stick with it. Don’t be surprised to find this “Junior Varsity” legal group forced to argue that Trump was just trying to “Stop the Steal”.
Oh, and one of his new attorney’s is known for doing pro-bono work. After it’s over, whether Trump is convicted or not, the Senate or the attorney need to do at least one more thing: send Donald Trump a bill.
He ain’t no charity case.
