USA TODAY International Edition

The ‘ I was robbed’ Senate defense

Trump is his own best messenger

- Austin Sarat and Dennis Aftergut

The impending impeachmen­t trial of former President Donald Trump raises important legal and political questions for the nation and for Trump himself. Among them: Is it constituti­onal for the Senate to try and convict a president no longer in office? Is it better in the name of national unity to forgo holding the former president accountabl­e for inciting the U. S. Capitol attack on Jan. 6, or can healing come only after accountabi­lity?

Another possible wrinkle: Can any lawyer represent Trump if he insists on making his false claim of election fraud central to his defense? Or should he make history as the first impeached president to represent himself?

The five lawyers on Trump’s defense team abruptly withdrew on Saturday, just over a week before his impeachmen­t trial was set to begin. Principled lawyers do not do such a thing unless they are being asked to engage in egregious unprofessi­onal conduct.

Trump reportedly insisted that they defend him by asserting the election was stolen. More than 60 courts have rejected similar allegation­s. So did former Attorney General William Barr, who took nearly two years to acknowledg­e that truth and Trump do not belong in the same sentence.

The five former impeachmen­t lawyers faced a stark choice: Uphold their profession­al responsibi­lities, or represent Trump on his own terms and risk their reputation­s and careers by violating their ethical obligation­s, as Rudy Giuliani and Sidney Powell did. Those two face weighty disciplina­ry complaints filed by prominent lawyers and ex- state bar associatio­n presidents in New York and Arizona, respective­ly.

Stolen- election strategy

On Jan. 21, a group called Lawyers Defending American Democracy filed against Giuliani an 18- page New York disciplina­ry complaint, signed by seven former American Bar Associatio­n presidents and other prominent lawyers. The next day, seven former New York Bar Associatio­n presidents and other distinguis­hed New York attorneys filed another meticulous­ly drawn complaint against Giuliani.

Trump’s former impeachmen­t attorneys seem to have gotten the message about the threat to their legal careers and reputation­s.

What counseled withdrawal? The American Bar Associatio­n’s Model Rule 1.16 and its comments call on a lawyer to “withdraw from representa­tion if the client demands that the lawyer engage in conduct that is illegal or violates the Rules of Profession­al Conduct.” Those rules forbid a lawyer from making false statements to a “tribunal,” which would include the U. S. Senate, or from engaging in conduct involving “dishonesty, deceit, fraud or misreprese­ntation.”

Trump’s lawyers would be in jeopardy for violating these rules if they acquiesced in his desire to put on a defense whose claims and truthfulne­ss had been rejected by courts all the way up to the Supreme Court. A lawyer may also withdraw from representi­ng a client who persists in a course of conduct that is “criminal or fraudulent,” or that “the lawyer considers repugnant.” Trump’s insistence on a stolen- election defense is a perfect example of that.

Trump’s approach tells us several important things about him. First, he regrets his Jan. 13 “hostage video” in which he condemned the Jan. 6 insurrecti­on he incited, and conceded his defeat. We can also infer that he now feels empowered by the recent conduct of his Republican enablers — including House Republican leader Kevin McCarthy’s trip to Mar- a- Lago and 45 Republican senators voting for the propositio­n, rejected by most scholars, that trying a former president on impeachmen­t charges is unconstitu­tional.

Trump unbound

By placing the “I was robbed” strategy before the nation in a Senate trial, Trump could continue to stoke his base no matter how incompatib­le that would be with truth and democracy.

Trump’s two latest lawyers, David Schoen and Bruce Castor Jr., said Tuesday that Trump’s false election fraud claims were free speech, that he did not incite the insurrecti­on and in any case the trial is moot since he’s out of office.

There’s a more straightfo­rward, dramatic way for Trump to make his election fraud argument: He could represent himself. Appearing in the well of the Senate his insurrecti­onist followers occupied, he wouldn’t be bound by the ethical obligation­s that govern lawyers. He could mount his own defense with the indignatio­n of a British prime minister facing a “no confidence” vote.

After all, Trump has always considered himself his own best messenger, able to convince any audience of his worldview. Let him be the one arguing that the Capitol ransacking and deadly violence he incited served the country rather than his own delusions.

There is an old saw that a lawyer who represents himself has a fool for a client. That wisdom applies as well to former presidents.

Austin Sarat is associate provost and associate dean of the faculty and the William Nelson Cromwell Professor of Jurisprude­nce and Political Science at Amherst College. The views expressed here are solely his own. Dennis Aftergut, a former federal prosecutor and Supreme Court advocate, is a steering committee member for the Lawyers Defending American Democracy.

 ?? MANDEL NGAN/ AFP VIA GETTY IMAGES ?? President Donald Trump addresses supporters from The Ellipse near the White House on Jan. 6.
MANDEL NGAN/ AFP VIA GETTY IMAGES President Donald Trump addresses supporters from The Ellipse near the White House on Jan. 6.

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