Former President Donald Trump’s choice of an impeachment lawyer suggests he may be preparing to relitigate his claims of a stolen election during his Senate trial, according to legal experts and former White House advisers.
Last week, it emerged that Trump had retained Butch Bowers, a South Carolina elections and ethics lawyer, as he prepares to fight an “incitement to insurrection” impeachment charge.
At the same time, Republicans and allies have coalesced around a defense that it is unconstitutional to proceed with impeachment against a former president.
But a source familiar with thinking inside the Trump camp said the former president is in danger of making an “error” in preparing to claim once again that the election was rigged.
“People who are insiders talking about this are worried because the attorney that Trump has retained — on the advice of Lindsey Graham — Butch Bowers, is an election attorney,” said the source, referring to the South Carolina GOP senator who has been an on-again-off-again ally of the 45th commander in chief he once slammed as unfit for the job.
Trump has repeatedly tried to argue that the election was stolen from him. It culminated in a speech at a Jan. 6 rally near the White House before some in attendance headed to the Capitol and ransacked the legislative hall while vocally threatening congressional Democratic leaders and then-Vice President Mike Pence.
“We fight like hell,” he told supporters at a Stop the Steal rally. “And if you don’t fight like hell, you’re not going to have a country anymore.”
John Yoo, professor of law at the University of California, Berkeley and who has advised the Trump White House, said the former president’s best defense is Congress cannot impeach an official after leaving office. He also would be able to argue on the facts that his actions fell short of incitement and that the crowd was engaged in criminal activity that did not amount to insurrection.
“Trump did not hire a constitutional attorney, the type who argues at the Supreme Court regularly, or a real criminal defense attorney,” he said. “To hire someone who is an election law attorney suggests that he wants to relitigate whether there was actual fraud in the 2020 elections, which is irrelevant to the charges.”
Trump allies believe the impeachment trial is doomed to fail anyway. On Tuesday, the Senate voted 55-45 against a motion trying to dismiss the suit as unconstitutional.
The numbers, with only five Republicans joining Democrats, suggest prosecutors will fail to reach the two-thirds majority needed for a conviction.
In the meantime, Bowers has offered no insight into his strategy so far. In an interview with the Washington Post, he said: “You’ll see our case when we present it, and I think the facts and the law will speak for themselves.”
He is known for taking on several high-profile political cases in South Carolina. In 2009, he represented former Gov. Mark Sanford, who faced impeachment after admitting he lied about hiking the Appalachian Trail when he was actually with his mistress in Argentina. The case was dropped.
“Butch Bowers is an excellent attorney who’s well versed in all the ins and outs of election law,” South Carolina GOP Chairman Drew McKissick told South Carolina’s State newspaper. “The state party has used him for years, and with his services, we think the president is in great hands.”
New York University professor of law Richard Epstein said Trump’s strongest defense is arguing the Senate trial is unconstitutional, but his choice of lawyer may have been dictated by more prosaic needs.
“Nobody wants to be associated with him,” he said.
Jason Miller, former Trump campaign adviser who last week confirmed the hiring of Bowers, declined to comment.
