The odds of the Senate succeeding in convicting Donald Trump are virtually nonexistent, but the unconvincing impeachment defense put forth by his lawyers may indeed cost him some Republican acquittal votes. After a painful first day of Trump’s second impeachment trial, Sen. Bill Cassidy crucially reversed course, voting that the trial is indeed constitutional despite having voted the opposite way just last month.
Unable to defend Trump on the merits of his post-election conduct, much of the GOP has relied on the procedural argument that convicting a private citizen in an impeachment trial is unconstitutional. Sen. Rand Paul tried to lock in his colleagues by forcing a vote on the trial’s constitutionality weeks before it actually began, with 45 Republicans ultimately voting that it’s not. Cassidy was one of them, so what happened? Well, Trump’s legal defense did.
Trump reportedly lost his first legal team after it refused to acquiesce to his demands that it reassert his lie that the election was stolen as a part of his defense. Doing so would render an acquittal vote politically toxic for Republicans, as such a strategy would constitute a justification of Trump’s incitement of the Capitol storming, not an actual defense against the charge that he did so. Trump’s second legal team asserted that it would stick to the constitutionality defense, but the first day of the trial indicated otherwise.
First, Bruce Castor kicked off Trump’s defense with a meandering filibuster saying almost nothing of substance but that the Senate has no need to disqualify Trump from future office because the election removing him from this office was legitimate. Then, David Schoen littered an unfocused unconstitutionality argument with random railings against the “elites” and cancel culture. (Reminder: The Senate using a constitutionally valid mechanism to punish a former president to telling an armed mob to “stop the steal” at the Capitol and then refusing to deploy the National Guard when it does so is not cancel culture.)
So Tuesday’s line of defense wasn’t as bad as simply saying that the election actually was rigged so inciting a riot was justified. But it wasn’t much better, and Cassidy blamed the team’s shoddy argumentation directly in justifying his vote reversal.
CASSIDY on why he voted with Dems on the constitutionality of the trial: “Trump’s team was disorganized … they did not talk about the issue at hand,” he said. “As an impartial juror, I’m going to vote for the side that did the good job”
— Alayna Treene (@alaynatreene) February 9, 2021
Paul’s constitutionality vote was designed to give the 45 senators who deemed the trial unconstitutional cover for voting to acquit Trump without conceding that his behavior was justifiable on the merits. But even that political cover has limits, and at least one senator found the limit today. Trump would be wise to get his legal team to straighten up and stick to the constitutionality argument. Otherwise, he could see more defections from the party line.
