The new legal team former President Donald J. Trump called for his impeachment trial next week is unlikely to focus its defense on his baseless allegations of widespread electoral fraud and instead question whether the trial is even constitutional since he is no longer president, people close to the team said on Monday.
Several Trump advisers told the former president that using his election demands as a defense for his role in the mob attack on the Capitol last month was unwise, according to a person close to the new lawyers, David Schoen and Bruce L. Castor Jr. The person said the former president’s advisers did not expect this to be part of the arguments they are making in the Senate.
Mr. Schoen, an Atlanta-based criminal defense attorney, and Mr. Castor, a former Pennsylvania district attorney, replaced Butch Bowers and four other attorneys working with him after separating from the former president.
A person close to Mr Trump said there was a disagreement over the strategy’s approach and that the former president had no “chemistry” with Mr Bowers, a South Carolina lawyer who had him recommended by Senator Lindsey Graham, one of his most loyal supporters. A second person close to Mr Trump said Mr Bowers appeared “overwhelmed” by the case.
The new team is due to file a brief with the Senate on Tuesday that will give a first glimpse of how they plan to defend the former president. Mr. Trump never had a chance to offer a defense in his House impeachment trial because of the speed with which it was conducted.
Texas Republican Senator John Cornyn on Monday warned Mr. Trump’s team not to rehash his inflated grievances and debunked the theories of voter fraud. Better, he said, to focus on refuting the details of the House’s “incitement to insurgency” charge.
“It’s really not material,” Cornyn told reporters on Capitol Hill of repeated statements by Mr. Trump. “As much as there might be a temptation to raise other issues, I think it would be a disservice to the president’s own defense to get bogged down in things that are not really before the Senate.
Many Republicans on Capitol Hill expect the defense team to at least partially rely on their argument that holding a trial of a former president is unconstitutional. People close to Trump’s legal team have said it will be a main line of defense.
The constitutional debate around this issue – many researchers disagree, citing that the Senate has tried a former public servant in the past – will feature significantly in the lawsuit. In preparation, the Senate explicitly asked both parties to indicate in their written submissions “whether Donald John Trump is subject to the jurisdiction of an impeachment court for acts committed as President of the United States, notwithstanding the expiry of his term in said function. . “
House managers are expected to file their own more detailed legal brief on Tuesday. The document is expected to offer the first full roadmap of their argument that Mr. Trump sowed baseless allegations of election fraud, summoned his supporters to Washington, and then directly urged them to confront Congress as he met in the Capitol to certify his electoral loss.
The brief will also include an argument for holding the trial, with managers prepared to argue that the framers of the Constitution intended the impeachment to apply to officials who committed offenses during their tenure.
A similar document from Mr. Trump’s team to develop their initial argument is expected next week before the trial begins on February 9.
Some around the former president have suggested arguing against the central prosecution in the impeachment article – which he instigated an insurgency – and instead focus more narrowly on process issues like the constitutionality of the ‘case.
While the lawyers have just been appointed, Mr Schoen spoke with Mr Trump and others around him informally for several days, relatives of the former president said. Mr. Schoen has represented a range of clients, including mobsters and Mr. Trump’s longtime advisor Roger J. Stone Jr.
Mr. Castor is best known for making a deal not to prosecute Bill Cosby for sexual assault while he was a district attorney for Montgomery County, Pennsylvania. He was also briefly acting state attorney general.
Mr. Castor’s cousin is Stephen R. Castor, the Congressional investigator who fought Democrats against Mr. Trump’s attempts to pressure Ukraine to investigate Joseph R. Biden Jr. while ‘he was preparing to run against him. A person familiar with the talks said Stephen Castor recommended his cousin to the former president.
It is not known how close the Castor cousins are. Stephen Castor is a veteran of some of Capitol Hill’s most fiercely partisan watchdog disputes of the past decade. He has worked on investigations into the Obama administration’s handling of an attack on the US diplomatic mission in Benghazi, Libya, and on an arms trafficking program known as Operation Fast and Furious.
Meanwhile, the nine House impeachment officials have gone largely underground in recent days, prioritizing preparations for private trials over the type of television interviews and other public appearances often used in Washington in an attempt to change public opinion.
Democratic leaders are trying to get through both the president’s long legislative agenda and a major impeachment trial for his predecessor more or less simultaneously. The decision to keep a low profile was apparently motivated by a desire to distract as little attention as possible from Mr Biden’s push for coronavirus relief legislation, the priority issue on his agenda.