Last week, 45 out of 50 GOP senators voted in favor of a procedural motion arguing that it was unconstitutional for the Senate to hold an impeachment trial for a former president because that individual is already out of office. Cramer said Trump’s lawyers should treat that vote as a victory, noting that “you already have a winning score on the constitutional message.”
“I’d take the cue from what worked with the first vote in the Senate: it’s unconstitutional,” added Sen. Mike Braun (R-Ind.), who said the procedural arguments are the most potent defense and are already working, as Trump is on a glide path to an acquittal.
The overwhelming sentiment from Republican senators, who will serve as jurors in the trial when it begins next week, reflects their near-unity on the question of whether putting a former president on trial for impeachment charges is unconstitutional. It also allows them to avoid scrutinizing Trump’s conduct leading up to the Jan. 6 insurrection at the Capitol, which the House’s impeachment article alleges he incited.
Trump’s lead defense attorney Bruce Castor said earlier Wednesday that he has not been pressured to reprise the unsubstantiated claim that the election was “stolen” from Trump, and insisted that his defense of the ex-president will focus strictly on the “technical” arguments. But just a day earlier, in his team’s first official response to the impeachment charge, they explicitly doubled down on the false allegations about widespread fraud in the 2020 election.
Appearing on KYW Newsradio Philadelphia, Castor maintained that the fraud claims will not be a part of his defense of Trump on the Senate floor and said the Senate has no jurisdiction over a private citizen because “it would be almost the equivalent of the president having died — they can’t remove him from office because he simply is unable to be removed because he’s not there.”
“There are plenty of questions about how the election was conducted throughout the country, but that’s for a different forum, and I don’t believe that’s important to litigate in the Senate trial because you don’t need it,” Castor said. “President Trump has plenty to win with what he has.”
Trump cut ties with his initial legal team over the weekend in part because they refused to advance the fraud claims, but Castor insisted he was not pressured to adopt that strategy ahead of the trial, which begins next Tuesday.
“I don’t know where people got that notion that was some sort of litmus test to get to defend the president, because as you saw from the document I filed, which had to be approved by the president personally, there isn’t anything in there about the election being stolen,” Castor said.
Indeed, Tuesday’s filing, written by Castor and his co-counsel David Schoen, does not argue that the election was “stolen” from Trump. But it does state that Trump “denies” the House managers’ assertion that it was false for the former president to say he won the election in a “landslide.”
The filing also maintains that Trump has a First Amendment right to express his opinion that the election results were inaccurate or disputed. The House impeachment managers argued in a separate filing Tuesday that Trump’s continued advancement of that false claim backs up their charge that he incited the Jan. 6 insurrection at the Capitol, which left five people dead.
Upon learning of those passages in Castor’s filing, Trump ally Sen. Lindsey Graham (R-S.C.) said: “If they start trying to prove that Georgia and Pennsylvania and Wisconsin were stolen, that’s when you’re going to lose everybody.”
At least one Senate Republican, though, disagrees. Sen. Tommy Tuberville (R-Ala.), who voted against certifying some Electoral College results on Jan. 6, said Trump’s lawyers should “throw the barn door at them.”
“How else are you going to defend yourself?” Tuberville asked, noting that the House managers’ case relies on Trump’s conduct in the months leading up to Jan. 6, not just the events of that day. “There’s no other way.”
While Republicans have coalesced around the idea that the trial itself is unconstitutional, Democrats unanimously oppose that view, and they’ve been joined by legal scholars from across the political spectrum. They note that the Constitution gives the Senate the “sole power to try all impeachments,” and that one of the potential punishments for conviction is barring that former president from holding federal office again. Moreover, they say, under Trump’s standard an official subject to impeachment could simply resign before the trial begins in order to evade accountability.
Based on last week’s vote, it is highly unlikely that the Senate will reach the two-thirds threshold required to convict Trump on the House’s charge that he incited the Jan. 6 attack. If all 50 Democratic senators vote in favor of conviction, at least 17 Republicans would need to join them in order for Trump to face punishments including a ban on holding office in the future.
In his radio interview Wednesday, Castor outlined the procedural arguments against a conviction, after the House impeachment managers wrote on Tuesday that Trump bears “unmistakable” responsibility for the attack on the Capitol.
“Just because somebody gave a speech and people got excited, it doesn’t mean it’s the speechmaker’s fault — it’s the people who got excited and did what they know is wrong,” Castor said, referring to Trump’s remarks to the crowd the just hours before it stormed the Capitol.