Update: The SECOND Trump Impeachment Ethics Train Wreck


When we last looked in on the destructive, divisive, unconstitutional and unethical fiasco known here as the Trump Impeachment Ethics Train Wreck II, Senator Rand Paul had delivered an excoriating speech about the unconstitutional nature of it all, every Democratic Senator had voted to continue with a trial that is, as Paul stated, unconstitutional on its face, Democrats openly discussed passing a Bill of Attainder (which is what any action barring a single private citizen, Donald Trump, from running for office would be), the Chief Justice refused to sully his name by any involvement with such an embarrassment, and President Biden, while vowing out of one side of his mouth to be a unifying presence, lifted nary a finger to stop his party from engaging in a trial that was based on hate, vengeance, and the craven need to satisfy the worst of its supporters. Meanwhile, the mainstream news media refuses to inform the American public why the whole thing is bad partisan political theater and little else.

Now we have the following fun developments:

  • CNN falsely reported that that the former President is “struggling” to  find lawyers willing to take his case with legal briefs due next week and a trial set to begin only days later. That’s 100% false. Alan Dershowitz, to take one capable attorney as an example, has stated publicly that he would love to defend Trump. He has other capable lawyers working for him, and a second year law student from a state school could handle this case. The argument: “The Senate has no jurisdiction to try a private citizen. The Defense rests.” The legal brief would be similarly simple to write, with only one cite necessary, the section of the Constitution that describes a Senate trial of a President.
  • Butch Bowers and Deborah Barbier, who were expected to be two of the lead attorneys, have withdrawn from the case, CNN says, as have Josh Howard, Johnny Gasser and Greg Harris. “No other attorneys have announced they are working on Trump’s impeachment defense,” the inept news service says. Legal ethicist here! A lawyer cannot announce that he or she is representing a client without the client’s consent. That’s an ethics violation. For all CNN knows, Clarence Darrow, Johnny Cochran and Edward Bennett Williams are all coming back from that Big Law Office in the Sky to defend Trump.
  • “A person familiar with the departures,” CNN reports, “told CNN that Trump wanted the attorneys to argue there was mass election fraud and that the election was stolen from him rather than focus on the legality of convicting a president after he’s left office. Trump was not receptive to the discussions about how they should proceed in that regard.” Well, that information is 1) hearsay 2) a breach of confidentiality if true. A lawyer may not share what they discuss with a client (or a potential client) under pain of suspension. If the information came directly from the ex-President because he can’t keep his big mouth shut (or wants to troll the media by feeding them fake news, that’s different.
  • Since the trial itself is a legal fiction, using it to make the case that the election was corrupt and that Trump was not “falsely subverting democracy” by challenging the results but in fact acting to protect it isn’t as crazy as it seems at first glance.
  • If Trump himself is planning on handling that task in person, it IS as crazy as it seems.
  • There is legitimate suspicion, based on the way anyone agreeing to assist Trump as President has been threatened and attacked beginning with performers at his Inauguration forward, that the lawyers who have withdrawn did so as a result of pressure from their firms, based on threats from anti-Trump clients. Legal ethicist here again! If that is what happened, it is unethical conduct by the lawyers and the firms. As former U.S. solicitor general Paul Clement wrote in resigning from his firm after it was pressured to drop the DOMA case by some big clients, a law firm must  not abandon a representation

“…because the client’s legal position is extremely unpopular in certain quarters… Defending unpopular positions is what lawyers do. The adversary system of justice depends on it, especially in cases where the passions run high. Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law.”

  • Ah, but the legal profession has seen so many lawyers lose any sense of ethics and professionalism in their clubby hatred of Trump that they can no longer distinguish ethics from succotash. Here. for example, is law professor Paul Campos:

“Let’s get one thing straight: there’s nothing ‘respectable’ about representing Donald Trump in his impeachment trial. Trump doesn’t have any legal right to be represented by a lawyer in this context: it’s not a criminal trial, and if no real lawyer is willing to represent him, well that’s just too bad. The notion that someone like Trump has a ‘right’ to have lawyers help him out in this context is a particularly perverse abuse of the concept of the right to counsel. If you represent Trump in this context it’s either because you think what Trump did on January 6th was affirmatively good, or you like money — or more realistically the promise of money — enough to overcome your distaste for murderous sedition.”

Ann Althouse calls this “creepy”: “He’s laughing at Trump’s loss of legal representation and condemning any lawyer who would step up to provide representation. He says it’s perverse and abusive even to think that there is a right to counsel at this thing called a trial that is to take place in the Senate. Everyone already knows in advance that Trump is guilty of “murderous sedition.” 

Creepy? Campos is an asshole, but we knew that: The University of Colorado law prof previously compared any discussion of possible voting irregularities to Holocaust denial.

2 thoughts on “Update: The SECOND Trump Impeachment Ethics Train Wreck

  1. Republicans were out-lawyered before the 2020 Election. The rules were changed in most of the swing states, with COVID as the primary pretext. Had the rules stayed exactly the same without regard to COVID it would have provided an arguably unfair advantage to Republicans, as polls show Republicans are less likely to be concerned about in-person voting. Still, the rule changes with regards to mail-in voting without safeguards against ballot harvesting and other safeguards in critical states had both the purpose and effect of tilting things in favor of the Democrats. This does not mean the Democrats “stole” anything, or even that the election manuvering necessarily changed the outcome. But it was Democratic lawyers who made these changes happen.

    That Democratic lawyers outmanuvered Republican lawyers is no surprise. Democrats start with an edge in the legal profession. These disparities are magnified by cancel culture and the unwillingness of many law firms to get involved in helping Republican causes, especially when those causes are election-related.

    Trump’s impeachment trial is a side-show. But the reported inability of Trump to find lawyers willing to make the arguments Trump wants made does not bode well for the future. Maybe CNN is making the story up to push the narrative that no reputable lawyer will question the results of the 2020 elections, or maybe Trump is really having trouble finding such lawyers. Either way, for elections in a two-party democracy to be fair, the two major parties should have near-equal access to quality legal advice and representation. Right now they don’t.

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