USA TODAY International Edition
The ‘ I was robbed’ Senate defense
Trump is his own best messenger
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 office? 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 first impeached president to represent himself?
The five 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 five 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 filed 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 filed 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 filed 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.
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 office.
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 confidence” 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.