With a new Senate trial looming after President Donald Trump was impeached for a second time Wednesday, House Democrats say they are “ready to go” — but Trump’s legal strategy remains a complete unknown, as he reportedly struggles to find lawyers to represent him.
Trump’s original cast of impeachment lawyers, who represented him during his first impeachment trial — including White House counsel Pat Cipollone and Jay Sekulow — have abandoned him, according to Bloomberg, as have a number of other prominent conservative legal figures.
One lawyer who has not done so, however, is Rudy Giuliani, Trump’s personal attorney, failed election lawyer, and conspiracy theory enthusiast.
Giuliani has told ABC that he is “involved” with the president’s impeachment trial defense, and he has even floated a possible Trump appearance at the trial.
“You always make that decision at the last minute,” Giuliani told ABC’s Jonathan Karl this week of the possibility of Trump testifying. “As a lawyer, I wouldn’t be as strongly opposed to his testifying as I was [in Trump’s first impeachment trial].”
Still, Giuliani’s exact role is uncertain: According to Karl, Trump’s legal strategy remains “very much in the air,” and Hogan Gidley, who served as Trump’s campaign press secretary in 2020, has pushed back on the idea that Giuliani will play a role.
With a pending second impeachment trial for Pres.Trump, @jonkarl says the president's legal strategy is "very much in the air." https://t.co/1Msmg0e1aw pic.twitter.com/lDg9dzKi5z— This Week (@ThisWeekABC) January 17, 2021
“President Trump has not yet made a determination as to which lawyer or law firm will represent him for the disgraceful attack on our Constitution and democracy, known as the ‘impeachment hoax,’” Gidley tweeted over the weekend. “We will keep you informed.”
Statement On President Trump’s Impeachment Defense Team:— J. Hogan Gidley (@JHoganGidley) January 17, 2021
President Trump has not yet made a determination as to which lawyer or law firm will represent him for the disgraceful attack on our Constitution and democracy, known as the “impeachment hoax.” We will keep you informed.
Prominent GOP figures have suggested that Giuliani — whose public profile has grown increasingly bizarre in recent months and who is currently facing the prospect of disbarment in the state of New York — would not help Trump’s case with the Senate.
The former New York City mayor reportedly plans to reiterate a slew of debunked voter fraud arguments if he ends up defending Trump before the Senate, despite the fact that there is absolutely no evidence of widespread voter fraud — and that Trump and Giuliani’s allegations have repeatedly failed in court.
“I think it really boils down to what’s the defense that the president’s going to make,” Republican strategist Karl Rove told Chris Wallace on Fox News Sunday. “And if it’s Rudy Giuliani’s defense, I think it raises the likelihood of more than 17 Republicans voting for conviction.”
Karl Rove owns Rudy Giuliani pic.twitter.com/s7m2Db8bpP— Aaron Rupar (@atrupar) January 17, 2021
Any conviction will require at least 17 Republicans joining with the chamber’s 50 Democrats to form a two-thirds majority of 67 votes, and questions about Giuliani’s potential impact aside, that doesn’t look especially likely as things currently stand. Only a handful of Republican senators have expressed an openness to convicting the president so far, and none have taken a definite stance on the issue (though Sens. Lisa Murkowski and Pat Toomey both called on Trump to resign in the aftermath of the attack on the US Capitol earlier this month).
When Trump was acquitted by the Senate in February last year on two articles of impeachment — abuse of power and obstruction of Congress — just one Republican senator, former presidential candidate Mitt Romney, voted to convict him on either count, though every Senate Democrat voted to convict.
But Sen. Mitch McConnell, the Republican leader and soon-to-be Senate Minority Leader, is reportedly “pleased” with Trump’s impeachment this time around, according to the New York Times, and views it as a chance to “purge [Trump] from the party.” McConnell’s stance on conviction — which remains unclear — could potentially swing a large bloc of Republican votes, depending on how he decides.
If at least 17 Republicans defect and vote with the chamber’s slim 50-seat Democratic majority (which will begin on January 20 when Vice President-elect Kamala Harris becomes the tie-breaking vote), Trump would become the first president in history to be convicted by the Senate.
Ready or not, here comes the trial
Whether he turns to Giuliani or looks elsewhere, Trump may only have a few days to get his legal representation ironed out. According to Rep. Jamie Raskin (D-MD), the lead House impeachment manager, the single article of impeachment approved by the House on Wednesday will be sent to the Senate “soon.”
The House impeached Trump on a single charge of “incitement of insurrection” by a bipartisan margin of 232 votes to 197, with 10 Republicans, including the House GOP conference chair Liz Cheney, joining the Democratic majority to vote in favor of impeachment.
With the clock running out on Trump’s presidency, however, it’s also extremely likely the trial will take place once he’s out of office. According to a memo circulated by McConnell, who remains Senate Majority Leader until President-elect Joe Biden is sworn in, the soonest a trial could commence is 1 pm Eastern time on January 20, an hour after Biden takes office.
NEWS —> McConnell sends memo to GOP senators outlining how an impeachment trial would work if the House goes thru. In essence, McConnell explains how an impeachment trial would consume the first days of Biden’s presidency. Memo exclusively obtained by WaPo https://t.co/q2f2Quum1Z pic.twitter.com/SAkVVsqPvb— Seung Min Kim (@seungminkim) January 9, 2021
That has Senate Democrats — and Biden — concerned about the effect a trial could have on the first days of the Biden administration, as well as on the expeditious confirmation of Biden’s Cabinet appointments. However, some members, like New Jersey Sen. Cory Booker, have said that the Senate should take up both priorities at once.
“We can actually hold impeachment trials as well as do other urgently critical things like getting key national security personnel confirmed,” Booker told Meet the Press host Chuck Todd on Sunday.
WATCH: @CoryBooker says he expects the impeachment trial to happen "as quickly as possible" but needs "the Republican leader to cooperate." #MTP— Meet the Press (@MeetThePress) January 17, 2021
Booker: We’ll need to do both, “hold impeachment trials ... as well as get key national security personnel confirmed.” pic.twitter.com/6I4gSH9rvb
In an additional wrinkle to impeachment proceedings, some Senate GOP members have also argued that the Senate is legally unable to try Trump once he leaves office.
“The Founders designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens,” Arkansas Sen. Tom Cotton said in a statement Wednesday. “The Constitution presupposes an office from which an impeached officeholder can be removed.”
However, it’s unclear whether that’s actually the case. As the Wall Street Journal reported Sunday, the Congressional Research Service recently found that, though the topic is still under debate, there is precedent for trying an official even after they have left office.
And there are consequences for being impeached beyond removal from office: As Vox’s Ian Millhiser has explained, the Senate could choose to bar Trump permanently from holding public office if it so wishes.
And according to California Rep. Ted Lieu, one of the House impeachment managers, convicting Trump would also “strip Trump of taxpayer-funded benefits like a pension, health insurance, office space and staff.”
In addition to specific sanctions, Democrats have also signaled that Trump’s conviction is important for accountability’s sake.
“I want people to focus on the solemnity and the gravity of these events,” Raskin told CNN’s Jake Tapper on Sunday. “Five Americans are dead because a violent mob was encouraged, exhorted and incited by the president.”
“I want people to focus on the solemnity and the gravity of these events. Five Americans are dead because a violent mob was encouraged, exhorted and incited by the president of the [US]," Rep. Jamie Raskin, lead impeachment manager, says on the case against Pres. Trump #CNNSOTU pic.twitter.com/Z27xTS1Uom— CNN Politics (@CNNPolitics) January 17, 2021