People familiar with Trump’s strategy say his defense attorney | .
People familiar with Trump’s strategy say his defense attorneys David Schoen and Bruce Castor hope to keep the trial “short and sweet” — not wanting to entangle themselves in a lengthy debate over whether their client’s comments at the “Stop the Steal” rally outside the White House qualify as inciting speech, or legitimize the prosecution’s arguments by focusing on Jan. 6. Instead, they plan to keep their defense narrowly tailored to the question of constitutionality.
Trump is likely to be acquitted — nearly four dozen Republican senators voted last week to declare Trump’s impeachment unconstitutional, leaving little chance that 17 GOP members will join Democrats to convict the former president.
In light of that, some allies are pressing him to use the trial to reintroduce his claims of ballot fraud and irregularities in the 2020 election.
“He is not going to be convicted, so we must address Nov. 3. And the best place to adjudicate this is the well of the U.S. Senate,” said Bannon. “It has to be dramatic, it has to be big. It has to be the big lie versus the big steal.”
Trump, whose own interest in resurfacing claims of a stolen election led to the abrupt departure of his original defense team last week, is not currently expected to take on a public-facing role in his impeachment trial — meaning that any mention of election fraud will be left to his attorneys to include or omit.
Attorney Alan Dershowitz, who served on the legal team representing Trump during his first impeachment trial and declined to represent Trump again, said focusing on election fraud would be a “serious mistake.” But he also said the president’s legal team should avoid ticking through what was said in the hours before the riots on Capitol Hill.
“He loses senators if he starts going into a defense of his claims on the election or his defense of his speech,” Dershowitz said. “He’s better off if he allows his lawyers to make constitutional arguments under the first amendment and the limitations of the Senate to try anyone who is no longer in office.”
Dershowitz has argued Trump’s speech, which he called “upsetting,” is protected by the first amendment and pointed to the unanimous 1969 Supreme Court case Brandenburg v. Ohio in which it was ruled that promoting the use of force is protected unless "directed to inciting or producing imminent lawless action."
Jonathan Turley, a George Washington University law professor who met with Senate Republicans last week to outline the unconstitutionality of the trial, said he expects Trump’s defense to show clips of Democratic lawmakers making equally heated claims about the election. A team of former Trump aides who were enlisted by Miller to help prepare for next week have already developed graphics and videos that will be used by the former president’s attorneys at the trial.
“I think this trial may prove a raw reflection of our age of rage. I think both sides are looking at this trial to amplify their mutual criticisms,” Turley said. “There’s going to be a lot of heat and not much light generated from those arguments. I don’t think many minds are going to be changed either way.”
Andrew Desiderio contributed to this report.
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