February 10, 2021

I watched and listened to part of the impeachment trial yesterday while I went about doing other things during the day.  The contrast between the presentation by the impeachment managers for the House of Representative, led by Jamie Raskin, and the presentation by Trump’s legal counsel was stark.   Jamie Raskin and his team presented a cogent, well thought out and articulate argument as to why the trial was constitutional.    On the flip side, by almost any measure, the performance of Trump’s attorneys Bruce Castor and David Schoen, was a disaster.  I’m certainly no lawyer but the contrast between the two sides was stunning.  As I saw in one Tweet, these guys made Rudy Giuliani look polished.  They were grossly underprepared.

It is true that Trump’s original team of five attorney’s had deserted Trump only one week before because apparently, they refused to argue ‘the big lie’ about wide spread voter fraud and that Trump actually won the election.  They knew that was only not true but a losing strategy and they finally walked.  Bruce Castor and David Schoen jumped into this fire at the last minute and it showed yesterday.  At the end of the day, 6 Republicans sided with the Democrats to vote that the trial was, in fact, constitutional and would proceed.

One has to wonder why Trump has had such trouble in getting top notch legal counsel.  On the one hand, one would assume there would be a number of high-profile attorneys who would be willing to try to make a name for themselves by defending the 45^th president in this impeachment trial.  The sad fact is, no one wants to go anywhere near this.   Where is Alan Dershowitz, the constitutional scholar and Harvard professor, who helped defend Trump in his first impeachment trial?  Where is Ben Ginsberg, famed Republican lawyer who has defended many Republican candidates over the years?  Washington D.C. is filled with high-priced, high-profile attorneys who would normally salivate for opportunities like this.  Where are they?

All of the rabid Trump supporters should ask themselves why Trump is having such a difficult time recruiting and retaining competent legal counsel?  Perhaps they should ask themselves why they should continue to defend this man when virtually no top notch, high-profile, well-credentialed and respected attorney in the country will jump into this swamp to defend Trump against these charges.  The fact is, all of these lawyers know that ‘the big lie’ is exactly that, a big lie, and the facts are strongly stacked against Trump.  They are also acutely aware that if Trump is acquitted, the decision will be based more political factors than on legal arguments.

After watching and listening to the proceedings yesterday, there is no doubt in my mind that Trump’s attorneys are overmatched and in over their heads.  I suspect the legal arguments presented by Jamie Raskin and his team in the upcoming days will be overwhelming from a legal standpoint.  It is going to put the Republicans in the senate in a very awkward position and it will be interesting to see what the political calculus will be.  Make no mistake about it, the outcome of this trial will not be based upon facts and legal arguments but will be based upon the collective political calculations made by the Republican jurors.

In a regular trial, the outcome is based upon the presentation of facts and arguments made by both the prosecutor and the defense counsel.  However, the big difference between a regular trial and this trial in the senate is that regular jurors do not have to worry about things like re-election!  I have served on three juries, including on one gang murder case, and when we received the case in the jury room, we simply debated that facts and arguments presented before rendering our verdict.  We certainly never concerned ourselves with what the political ramifications of our decision would be.  [Although in the murder trial the court records were sealed and our identities were protected for security reasons].  But, unlike a regular trial, the Republicans voting on this impeachment article will have the political calculus of their vote front and center in their minds.

It will take 17 Republicans to break ranks and join the Democrats to vote to convict Trump.  If there are less than 17 Republicans and Trump is acquitted, those Republicans who did vote to convict Trump, know they are likely to face a full-on assault from Trump and his allies in the upcoming months.  Trump has proven that he is a very vindictive and vengeful person so there is no doubt he will do everything he can to punish those individuals.  On the other hand, if a sufficient number of Republicans vote to convict Trump and preclude him from ever holding office again, there will be an immediate backlash from the Trump base.  However, if Trump is out of the running for future elections, that opens up the door for someone else to emerge as the Republican standard-bearer.  One has to believe there are a number of Republicans who have their eye on the White House and know that if Trump is off the playing field, it’s an entirely new game.

Given that under Trump’s leadership, the Republican Party lost the House, the Senate, and the White House one would think that the political calculus would argue for new leadership.  There haven’t been a lot of courageous Republicans willing to stand up to Trump over the last four years so I guess there’s really no reason to expect that to change.   I guess we’ll see.