Anytime your lawyers walk out on the eve of the most important trial of your life, you should be in big trouble. Except, of course, if you're Donald John Trump and you're facing your second impeachment trial in the U.S. Senate, where the majority of Republicans are either spineless sycophants or outright authoritarians who will never vote to convict you, no matter how compelling the evidence.
That's exactly where Trump finds himself as his latest trial is slated to begin on February 9. Five members of Trump's impeachment legal team resigned a little more than a week before the trial, ostensibly over disputes about trial strategy. According to several news outlets, Trump pressured the lawyers to center his defense on the widely debunked claims of election fraud he persists in peddling. The attorneys wanted to concentrate on constitutional issues.
The legal exodus left Trump scrambling to hire replacements and even boasting to aides that he could represent himself. He has since hired another slate of lawyers headed by two attorneys who boast strong right-wing credentials and, like Trump, have a flair for publicity.
One of the newcomers, David Schoen of Montgomery, Alabama, previously represented Trump associate Roger Stone, and met with Jeffrey Epstein in prison nine days before the accused sex trafficker's death. Epstein reportedly asked Schoen to represent him, and Schoen has since declared he believes Epstein's death was not a suicide.
The other new lead counsel is Bruce Castor of Pennsylvania, who once served as the district attorney of Montgomery County, a suburb of Philadelphia. In 2005, Castor made headlines when he declined to bring sexual assault charges against comedian Bill Cosby.
Ordinarily, a defendant buffeted by such a last-minute shuffle of attorneys might be expected to "lose big time," to invoke one of Trump's favorite catchphrases. But not in this case.
Despite the internal turmoil, Trump's acquittal appears all but certain. On January 26, 45 Senate Republicans voted in favor of a procedural motion that would have dismissed the impeachment case against Trump on the legally dubious theory that the Constitution restricts impeachment to current officeholders. Although 55 senators, including five Republicans, voted to allow the trial to proceed, convicting Trump will require a two-thirds vote of the upper chamber, and that, at least for now, seems unattainable.
Sensing defeat, some Democrats have already started to waver. Virginia Senator Tim Kaine has announced plans to file a censure motion against Trump as an alternative to impeachment. Other Senate Democrats want to go ahead with the trial, but want to keep it as short as one week.
The hand-wringing, while predictable, is unwarranted and shortsighted. Above all, it fails to meet the vital challenge of holding Trump accountable for his plot to subvert democracy.
The article of impeachment lodged against Trump could not be more ominous. It charges him with "incitement of insurrection" for the infamous speech he delivered outside the White House on January 6, exhorting an angry and armed throng of white supremacists, neo-Nazis, QAnon fanatics, and MAGA zealots to march to the U.S. Capitol building and "fight like hell" to prevent the certification of Joe Biden's Electoral College victory, and in effect, overthrow the government.
In addition, the article maintains that: "In the months preceding the Joint Session [of Congress on January 6], President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials."
Leaving no doubt about Trump's intentions, the article also alleges:
"President Trump's conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to 'find' enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so."
Having come this far, Democrats have no choice but to mount the strongest possible evidentiary showing against Trump. Whether the trial takes a week or longer, and whether or not it features live witnesses, the House impeachment managers who will try the case against Trump must demonstrate, in the words of Representative Liz Cheney, that "The President of the United States summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing."
On February 2, the House managers filed an 80-page pretrial brief, promising to prove Trump's responsibility for the Capitol riot. Trump's new legal team filed a skimpy 14-page response, denying Trump caused the riot, contending the Senate cannot convict a former president, and arguing weakly that anything Trump said on January 6 or about election fraud generally was protected by the First Amendment. (As I have explained elsewhere, the First Amendment does not in fact protect speech aimed at inciting insurrection.)
As a technical matter, once the trial commences, establishing Trump's culpability should be easy. Hours of publicly available videos can be assembled and collated to document Trump's plan to retain power at all costs.
Starting in December, Trump began to urge supporters to come to Washington on January 6, tweeting on December 19 that there would be a "[b]ig protest," and inviting them to "Be there, will be wild!" Continuing the theme of impending insurrection in a tweet sent out the day after Christmas, he wrote, "If a Democrat Presidential Candidate had an Election Rigged & Stolen… the Democrat Senators would consider it an act of war, and fight to the death." Referring specifically to January 6 at a rally in Georgia on January 4 to support Republican Senate candidates Kelly Loeffler and David Perdue, he pledged, "We're going to take what they did to us on November 3. We're going to take it back."
The House managers also have access to video recordings that show, in real time, that many in the crowd on January 6 thought Trump was urging them to occupy the Capitol by force, and that they were following his orders. And then, of course, there is ample video footage of the actual destruction wreaked by the mob immediately following Trump's speech.
Democrats who need a shot of courage to move forward against the odds must take a broader historical view of the upcoming impeachment trial. It is not just the Senate that will hear the evidence against Trump, but the American people as well. And in a very real sense, it will not just be Trump on trial, but the racist and fascist insurgency he has unleashed. That insurgency will survive Trump and remain a clear and present danger to the nation for years to come. It must be vanquished and crushed by all available legal means.
Instead of anticipating just another legal loss on impeachment, Democrats should take a cue from the civil rights movement of the 1950s and '60s, which suffered many legal setbacks along the way to transformational victories.
In particular, Democrats would do well to recall the case of Emmett Till, the 14-year-old black teenager who was kidnapped, mutilated and murdered in Mississippi in 1955 for allegedly flirting with a white woman. Two white men were indicted by a Tallahatchie County grand jury for killing Till. But despite the overwhelming evidence against them, the defendants were acquitted by an all-white, all-male jury that deliberated for a mere 67 minutes.
The verdict, though cruel and outrageous, surprised no one. The defendants were never made to pay for their crimes—and in fact, later admitted their guilt in an interview with Look magazine—but their acquittal became a catalyst for subsequent advances in civil rights.
So, too, can the Democrats link impeachment to the wider struggle against fascism, and in the process turn defeat, if it comes, into a larger long-term triumph. But only if they have the necessary vision and, most essentially, the necessary courage.
Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal thrillers: Prejudicial Error, The Last Appeal, and The Face of Justice.