Every defendant deserves representation. That is a basic tenet of our legal system. No matter how \u201cbad\u201d a person might be, not matter how apparently awful the act the accused may have committed, they still deserve representation. Even more, it\u2019s how our system works. The American legal process is \u201cadversarial\u201d. One side presents a case, the other side presents their case, and the \u201cadjudicating authority\u201d determines which side is right. It might be a judge, it might be a jury.<\/p>\n\n\n\n
So while it\u2019s easy to say that someone did something so awful, so heinous, that they don\u2019t \u201cdeserve\u201d a defense; it simply doesn\u2019t work that way. We need defense lawyers for axe murderers and child molesters \u2013 in fact, those defendants need them most of all. <\/p>\n\n\n\n
In the American legal system we have \u201cpro-bono\u201d attorneys. They are appointed by the Court to defend those who can\u2019t 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.<\/p>\n\n\n\n
There is one exception to all of this. A defendant can demand that they \u201cdefend\u201d 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.<\/p>\n\n\n\n
For the second time in as many years, Donald Trump was impeached for \u201chigh crimes and misdemeanors\u201d 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.<\/p>\n\n\n\n
The Constitutionally mandated impeachment and trial process is a \u201cpolitical\u201d process, not necessarily governed by the standard rules of legal procedure. But Senate precedent has allowed for representation, and an opportunity to \u201cput on\u201d a defense in the trial. It\u2019s \u201cpart of the process\u201d, and a way that Americans will perceive that the process was \u201cfair\u201d. <\/p>\n\n\n\n
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\u2019s got a problem \u2013 his defense team just quit, one week before the start of the trial.<\/p>\n\n\n\n
From a legal standpoint, there are particular achievements that stand out.\u00a0\u00a0Arguing 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.\u00a0\u00a0\u00a0Yet this weekend, the lawyers representing former President Donald J Trump quit, leaving him without representation in this high-profile case.\u00a0\u00a0Lawyers above all understand the adversarial representation system.\u00a0\u00a0They are dedicated to it \u2013 from day one of Law School it\u2019s both \u201cpreached\u201d and \u201cpracticed\u201d.\u00a0\u00a0\u00a0To \u201cabandon\u201d a client before trial is a near breech of legal ethics.\u00a0\u00a0So what happened?<\/p>\n\n\n\n
There is no reason to try to defend the former President from \u201cincitement of insurrection\u201d charges, nor dereliction of duty charges, nor even encouraging election fraud.\u00a0\u00a0Those may be the substantive charges that the House Impeachment Managers want to prove, and they are actions that may well be indefensible.\u00a0\u00a0But Trump\u2019s attorneys won\u2019t fight those battles.\u00a0\u00a0Better to stand on one legal point:\u00a0\u00a0jurisdiction.<\/p>\n\n\n\n
The legal argument for Donald Trump is very straight-forward. It is the same \u201cprocess\u201d argument that earned forty-five votes in the Senate at the introduction of the House Impeachment resolution \u2013 that a trial of a former President, now a private citizen, is unconstitutional. In short, the Senate doesn\u2019t have jurisdiction.<\/p>\n\n\n\n
It\u2019s 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 \u201cformer high officials\u201d. 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 \u201cget-out-of-jail-free\u201d card for the last months of a Presidency. <\/p>\n\n\n\n
But all of the Constitutional and precedential authority doesn\u2019t 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 \u201cprocess\u201d argument. In legal terms: this case is a \u201cslam dunk\u201d. The jury is already \u201crigged\u201d.<\/p>\n\n\n\n
We don\u2019t know why these attorneys quit. But I\u2019m willing to make a guess: their client, Mr. Trump, wasn\u2019t willing to stand on the \u201cprocess\u201d 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 \u201cperfect\u201d speech on the Ellipse on January 6th<\/sup>, 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.<\/p>\n\n\n\n And for his attorneys all of those arguments put their \u201cslam-dunk\u201d case in jeopardy. Republican Senators would be forced to face reality: there is no evidence of voting fraud, the President pressured election officials to \u201cfix\u201d 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\u2019s guilt would be overwhelming, but more importantly, it would threaten the safe forty-five not guilty votes.<\/p>\n\n\n\n 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.<\/p>\n\n\n\n So if Mr. Trump can\u2019t find a defense team \u2013 what is the Senate supposed to do?\u00a0\u00a0If they just go ahead and proceed with the trial, then it will be \u201cunfair\u201d, regardless that the lack of representation is the defendant\u2019s own doing.\u00a0\u00a0If they delay longer, then all Mr. Trump has to do is NOT get a legal team, or keep firing them, and he\u2019ll never be tried.<\/p>\n\n\n\n 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. <\/p>\n\n\n\n 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”. <\/p>\n\n\n\n Oh, and one of his new attorney’s is known for doing pro-bono work. After it\u2019s 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.\u00a0\u00a0<\/p>\n\n\n\n He ain\u2019t no charity case.<\/p>\n","protected":false},"excerpt":{"rendered":"Pro Bono Defense<\/h3>\n\n\n\n