Trump's Legal Team Exited After He Insisted Impeachment Defense Focus on False Claims of Election Fraud

By Josh Dawsey, Tom Hamburger and Amy Gardner, The Washington Post

01 February 21

 

he implosion of former president Donald Trump’s legal team comes as Trump remains fixated on arguing at his second impeachment trial that the 2020 election was stolen from him, a defense that advisers warn is ill-conceived and Republican strategists fear will fuel the growing divide in the GOP.

South Carolina lawyer Karl S. “Butch” Bowers Jr. and four other attorneys who recently signed on to represent the former president abruptly parted ways with him this weekend, days before his Feb. 9 Senate trial for his role in inciting the attack on the U.S. Capitol. On Sunday evening, Trump’s office announced two new lawyers were taking over his defense.

Two people familiar with the discussions preceding the departure of the original legal team said that Trump wanted them to make the case during the trial that he actually won the election. To do so would require citing his false claims of election fraud — even as his allies and attorneys have said that he should instead focus on arguing that impeaching a president who has already left office is unconstitutional.

That approach has already been embraced by many Republican senators, many of whom cited it when they cast a test vote against impeachment last week.

Nearly all GOP senators vote against impeachment trial for Trump, signaling likely acquittal

Trump’s lawyers had initially planned to center their strategy on the question of whether the proceedings were constitutional and on the definition of incitement, according to one of the people, who, like others interviewed for this report, spoke on the condition of anonymity to describe the internal conversations.

But the former president repeatedly said he wanted to litigate the voter fraud allegations and the 2020 race — and was seeking a more public defense of his actions. Bowers told Trump he couldn’t mount the defense that Trump wanted, the person said.

“It truly was mutual,” the person said. “The president wanted a different defense. The president wanted a different approach and a different team.”

Trump spokesman Jason Miller also said Sunday that the split with his lawyers was mutual but rejected the notion that the former president wants to focus on election fraud in the Senate trial, calling that account “fake news.”

“The only guidance offered has been to focus on the unconstitutional nature of the impeachment to which 45 senators have already voted in agreement,” Miller wrote in a text message.

Bowers and the other lawyers who quit Trump’s defense team did not respond to requests for comment. CNN first reported that Trump wanted his attorneys to center his defense on his claims of election fraud.

On Sunday evening, Trump’s office announced in a statement that Atlanta-based trial attorney David Schoen and Bruce L. Castor Jr., a former district attorney in Montgomery County, Pa., would lead his defense team. The two lawyers will bring “national profiles and significant trial experience in high-profile cases to the effort,” the statement said.

Schoen previously served as a lawyer for Trump adviser Roger Stone when he sought to appeal his conviction for lying and witness tampering in a congressional investigation. He also was in discussions with financier Jeffrey Epstein about representing him days before his death while awaiting sex-trafficking charges and has said he does not believe Epstein killed himself. During his time as district attorney, Castor had declined to prosecute actor Bill Cosby and was later sued by accuser Andrea Constand in a case that was settled.

The disarray inside Trump’s circle comes as the House Democratic impeachment managers focus intensely on building a powerful and emotionally compelling argument that the former president’s words led his supporters to ransack the Capitol.

The House impeachment article charges Trump with “incitement of insurrection” in the invasion of the U.S. Capitol on Jan. 6 by a pro-Trump mob.

The Democrats have been working around-the-clock in preparation for the trial — including on Saturday night, when the news broke of Trump’s legal team collapsing, according to people familiar with their activities.

The impeachment managers are compiling footage from Jan. 6, including cellphone recordings of protesters attending Trump’s rally that morning and video from inside the Capitol after protesters breached it.

Their aim is to present stark evidence of how Trump’s words and actions — including his long-running attacks on the integrity of the election — influenced the rioters. The attempted insurrection left five dead, including one member of the U.S. Capitol Police. In addition, two officers, one with the D.C. police, have since died by suicide.

Both sides face tight deadlines to prepare for the trial. The House team must file its briefs Tuesday. Trump’s defense team lawyers must file their briefs on Feb. 8.

Democrats face a difficult task in persuading enough GOP senators to join them in voting to convict the former president. During a key test vote last week, all but five Republicans backed Trump in an objection to the proceeding lodged by Sen. Rand Paul (R-Ky.).

But Trump’s determination to mount a defense centered on the false claims that fraud tipped the outcome to President Biden could rattle GOP senators at a time when some in the party are facing pressure from donors and more moderate voters to reject such conspiracy theories.

“Trump went 0 for 60 in trying to make the voter fraud argument,” said veteran GOP lawyer Ben Ginsberg. “So Republican senators have no desire to be put on the spot in having to judge his unproven allegations of voter fraud.”

Ginsberg warned that Democrats have “so much raw material” that will allow them to “paint a picture of Trump that’s never been painted before of his involvement in the violence and insurrection.”

“And Trump plays right into their hands in talking about the fraud, for which he has been unable to produce any proof,” he said. “Which is why it’s a completely perilous defense. I can’t imagine any lawyer agreeing to present that case.”

It is also unclear whether Democratic Sen. Patrick J. Leahy (Vt.), who will preside at the trial, will permit the president’s team to introduce claims of alleged voter fraud.

The collapse of Trump’s legal team could “force the president now to turn to a better strategy,” one that would save him “from self-immolation,” said Jonathan Turley, a constitutional law professor at George Washington University who declined an offer to represent the president at the impeachment trial.

If Trump insists on arguing that the election was stolen, he would be on a destructive path, Turley said.

“That claim is viewed by many senators as one of open contempt for their institution,” he said. “As it stands now, he would be acquitted by a fair margin. If he pursued that path, it could change the view and the votes of some senators.”

The former president’s allies have also urged him to move forward with a defense based on constitutional questions.

In a recent interview with The Washington Post before Trump split with his lawyers, Sen. Lindsey O. Graham (R-S.C.) said the legal team planned to argue that impeaching a president who had already left office was unconstitutional, without getting into any battle over who won the election.

“It’s a simple case, really,” he said.

But Trump, who has been ensconced at his private estate in Florida since leaving the White House, has continued to insist that he actually won the election, according to people familiar with his comments.

As the trial nears, the former president’s circle of advisers has drastically narrowed. He is continuing to talk with his personal attorney Rudolph W. Giuliani, who led his efforts to subvert the election results. But former White House counsel Pat Cipollone, outside lawyer Jay Sekulow and former campaign lawyer Justin Clark have made clear they want no part of his defense strategy over the Capitol attack.

Some advisers have told Trump that he should testify in his own defense, but that is broadly seen as a bad idea and is unlikely to happen.

Cipollone and Giuliani did not respond to requests for comment.

With the help of Graham, Trump had assembled a team of five lawyers led by Bowers, an ethics and campaign law expert in South Carolina who had worked in the Justice Department under President George W. Bush.

The group included three former federal prosecutors in the state — Deborah Barbier, Johnny Gasser and Gregory Harris — as well as a North Carolina lawyer, Josh Howard. All left the Trump defense team Saturday, according to people familiar with the situation.

Miller said that only Barbier and Bowers had officially been named to the team.

The selection of a South Carolina-based legal team was a dramatic shift from Trump’s previous impeachment last year, when he was charged with abusing his power and obstructing Congress in pressuring Ukrainian President Volodymyr Zelensky to investigate Biden and his family.

During that trial, Trump was defended by lawyers experienced on the national stage. They included Kenneth Starr, the former special prosecutor whose work led to President Bill Clinton’s impeachment; Sekulow, who had defended Trump in other cases; and Alan Dershowitz, a Harvard University law professor known for his work in high-profile, controversial cases.

Losing his legal team days before the Senate trial presents a serious challenge, said Norm Eisen, an attorney who served as co-counsel to the Democratic managers during Trump’s first impeachment.

“This is a total disaster,” he said. “These are real trials, even if they are being litigated in the U.S. Senate, and I can tell you, the defense team needs to be prepared for what’s ahead.”

He said the late decision by Trump’s legal team to withdraw was a sign that the lawyers faced a deep ethical conundrum.

“It is anathema under our code of ethics to pull out on a client on the eve of a trial — unless that client places you in an impossible situation,” Eisen said.

If the Trump legal team had argued Trump’s claim that the election was stolen, “they would be arguing an out-and-out lie, and these lawyers were looking at the consequences of that,” he said, noting that other Trump lawyers are now facing ethics complaints, court sanctions and libel suits for pursuing fraud claims with no basis.

“I believe they were unwilling to expose themselves to years of repercussions for doing that,” Eisen said.