Advisers to former President Donald Trump are split on devising an impeachment defense, with Steve Bannon among those urging him to turn the Senate trial into a political bear fight by claiming once again that the election was stolen, according to a source familiar with discussions.
Trump’s legal team is scrambling to devise a strategy after he in recent days replaced five lawyers who were reluctant to relitigate what they saw as flimsy allegations of voter fraud.
While the Republican Party prefers arguing that the impeachment of a former president is unconstitutional, his allies fear Trump is gambling on a made-for-television, scorched-earth defense that risks defeat.
His advisers are fighting about whether to mount a conventional legal defense or use the Senate as a political platform.
“Bannon is the one wanting to tie it to a relitigation of the election,” said the source.
Bannon worked as White House chief strategist until falling out with Trump in 2017. However, last month it emerged that they had reconciled before Trump pardoned his former adviser, who was accused of conspiring to defraud donors to a fund to build a wall along the Mexican border, during his final hours in office.
Trump must respond to a charge of incitement of insurrection by midday on Tuesday, answering accusations that he was to blame for encouraging the deadly attack on the United States Capitol on Jan. 6. That single impeachment charge was passed in the House on a mostly party-line vote, with 10 Republicans joining Democrats to send the matter to the upper chamber.
Last week, all but five Republican senators voted to dismiss the trial as unconstitutional.
However, a tumultuous weekend brought a major shake-up of the legal team when the former president dismissed five lawyers because they were unwilling to argue that the election was stolen from him.
They were replaced with David Schoen and Bruce Castor, who have yet to indicate their strategy.
Schoen, who has appeared as an analyst on Fox News, defended lobbyist and Trump associate Roger Stone and was expected to represent Jeffrey Epstein before his death.
“I represented all sorts of reputed mobster figures: alleged head of Russian mafia in this country, Israeli mafia, and two Italian bosses, as well a guy the government claimed was the biggest mafioso in the world,” he told the Atlanta Jewish Times last year.
Castor was a district attorney in Pennsylvania and in 2005 decided not to prosecute Bill Cosby when he was charged with sexually assaulting Andrea Constand.
However, a former Trump adviser said the absence of constitutional law heavyweights suggests Trump is “doubling down” on a plan to argue he was robbed of a second term.
The “crisis” over Trump’s legal team quitting assumes that the substance of the impeachment case will sway Senate Republicans. Most already have their answer. Trump could offer no defense or he can go on the floor to read lines from the Joker movie—they would still vote to acquit
— Julian Zelizer (@julianzelizer) January 31, 2021
That is the last thing that senators want to hear about in a trial, said Heritage Foundation fellow Steven Groves, who as White House deputy press secretary played a central role in Trump’s response to his first impeachment last year.
“If you are a Republican senator sitting there, you want to hear about how it’s unconstitutional to try a former president in an impeachment setting. You want to hear about how the president was exercising free speech, and nothing he said, in any court of law, would be considered incitement,” he said.
“If you’re a Republican sitting there, you need a reason to cast your no vote on the article of impeachment,” he said. “And if you have your attorneys down in the Senate well talking about election fraud, you’re risking a conviction.”
The strategy for the GOP is clear: a political argument that the process is already tainted by the way House Democrats rushed through impeachment and a constitutional argument that Trump cannot be tried after leaving office.
The arguments were laid out in talking points circulated by the Republican National Committee last week. “The Founders designed the impeachment process as a way to remove officeholders from public office—not as a tool to punish private citizens,” it said.
That puts Republican senators in a very awkward position, according to University of Missouri law professor Frank Bowman.
“Is he not even going to have the grace to quietly retire, or is he going to aggressively continue to exacerbate the wider divisions in society?” he said. “In a sense, it’s not about the trial at all. It’s really about the course of our politics for some time to come.”
Jason Miller, former campaign adviser and de facto spokesman for the Trump legal team, did not respond to a request for comment.
