Trump’s Lawyers Lost the Day

The slovenliness of Trump’s legal team threatened to deprive senators of their face-saving excuse.

Trump attorney
Andrew Harnik / Getty

About the author: David Frum is a staff writer at The Atlantic and the author of Trumpocalypse: Restoring American Democracy (2020). In 2001 and 2002, he was a speechwriter for President George W. Bush.

“The mob was fed lies. They were provoked by the president and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like.”

That’s what Republican Senate Leader Mitch McConnell had to say on January 21. McConnell did not rise to the leadership of the Senate Republicans by speaking idly. If he feels that Donald Trump incited a riot with the specific purpose of thwarting the 2020 election, so do many other Republican senators as well.

That belief is the danger facing Trump at this impeachment trial. Here is his opportunity: Those same Republican senators who know Trump is guilty also desperately wish to avoid convicting him. They are looking for an escape route—and that’s what today’s proceedings were intended to provide those queasy senators.

The intended escape route was the argument advanced by Trump’s lawyers in their briefs: that the Constitution does not authorize the Senate to hear impeachments of former officials. Once an official resigns or once that official’s term expires, they say, impeachment expires too.

Senator Rand Paul moved a vote on that claim on January 26. The vote lost 55–45, with five Republicans joining the majority, but 45 senators would more than suffice to protect Trump from conviction. The route was mapped. Today, on the first day of the formal proceedings, Trump’s lawyers were supposed to organize the exit.

Only Trump’s lawyers messed up. Trump’s lawyers badly, badly messed up, humiliatingly messed up, world-historically messed up. They delivered two of the worst speeches ever delivered on the Senate floor—one vapid and meandering, the other belligerent and self-contradictory.

The quality of the speeches won’t make any difference to the outcome of the trial. The senators who will vote to acquit Trump are not voting because they are convinced of his innocence. They are voting because they are scared. And it will take more than an ill-prepared and ill-mannered legal team to unscare them.

But the quality of the speeches makes a difference in another respect. It’s not just Trump—and not even primarily Trump—who is on trial in the Senate this week. The partisans who enabled Trump are facing a trial of their own. What they desperately crave is a face-saving excuse for one final round of enabling.

The stupid slovenliness of the Trump legal team today, though, threatened to deprive senators of that face-saving excuse. As he so often has, Trump is making Republicans in Congress eat dirt, and eat their dirt without even the seasoning of plausible believability. It’s raw, dry dirt—pure in all its dirtiness.

Trump’s lawyers needed to hammer home the argument that when Trump’s presidency expired, so did the House impeachment. They needed to argue that the Senate cannot try—much less convict—an ex-president.

On their way to that argument, Trump’s legal team faced a number of bumps. The bumpiest bump of them all is a precedent from the Ulysses S. Grant administration. Grant’s secretary of war, William Belknap, was accused of corruption. Belknap resigned; the House impeached him anyway. The Senate debated whether a trial could proceed against a former official—and ultimately decided that it could. Belknap was not convicted in the Senate. But the precedent established in 1876 would seem to apply to Trump in 2020, and to apply all the more strongly, given that Belknap had resigned before the House impeached him, whereas Trump was still in office when he was impeached this second time.

The Trump team’s approach to the Belknap precedent can be summed up as: “Belknap? Bel-who?” His name and case went unmentioned by either of Trump’s lawyers on the very day designated for dealing with the precedent Belknap bequeathed them. Trump’s first counsel, Bruce Castor, seemed lost in vapors of his own making. But Trump’s second and more lucid lawyer, David Schoen, seemed almost belligerent in his refusal to deal with the Belknap precedent. Schoen insisted again and again that a post-term impeachment trial was illegal, unconstitutional, immoral, unprofessional, ultra vires, and possibly even ultraviolet—and yet never once mentioned that one such trial had already happened and been accepted by the Senate at the time as valid. Can you just close your eyes and clap your hands for Tinker Bell to make that precedent go away? Yes, said Team Trump.

Meanwhile, the House managers presented a learned case, based in history, establishing that the authors of the state and federal constitutions of the 1780s agreed that an impeachment begun when an official held office could be continued if it was not yet finished before that official left. The House managers quoted the debate over Belknap, and other precedents, all underscoring the words of former President John Quincy Adams: “I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.”

When today’s passions subside, and the law professors of the future review the record, the decision will be unanimous that the House managers easily won the day—especially because the Trump team acted as if it did not know what day it was.

From the point of view of vote counting, the Trump team’s ineptitude will not much matter. Most Republicans in the Senate will vote for anything to protect Trump; only one, Bill Cassidy of Louisiana, switched his vote to affirm that a former president could be tried, joining the five other Republican senators who had voted that way on the earlier measure.

From other points of view, however, the Trump team’s ineptitude will matter very much. Almost no matter what happens in the trial, at least 34 Republicans will vote to acquit Trump, but most would prefer not to look like utter hacks and fools in the process. Give us something to make our votes look decent, they must wish—but their wish today was refused.

In humiliating themselves, Trump’s lawyers humiliated the senators who will ultimately have to approve of their work and adopt it as their own point of view.

The goal of McConnell and the other less Trump-y Senate Republicans is to begin at once to put maximum distance between themselves and the least popular one-term president in the history of polling. Trump cost his party its majority in the House in 2018, its hold on the presidency in November 2020, and its majority in the Senate in January 2021. Trump was unpopular through his presidency, and he is becoming more unpopular in retrospect as the Biden administration manages the pandemic better than Trump did. Trump’s unpopularity explains why senators such as Marco Rubio express such resentment and bitterness at being entrapped into defending him.

But Trump won’t allow himself to be distanced. His team’s sorry defense at the impeachment trial binds Republican senators more closely to Trump. The constitutional argument promised by Trump’s advocates was smashed to pieces by the superior argument and evidence of the House managers.

Having lost that round, Trump’s lawyers and the Republican senators must now confront the actual damning proof of Trump’s culpability for the attack on the Capitol January 6. They will try to close their eyes to that too. But the 56 percent majority that wants Trump convicted—that majority of the country will see it all.