Trump legal vets torn over new impeachment defense

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The legal team that defended President Donald Trump from impeachment is rushing to his side as it happens again.

With House Democrats pushing to impeach the president before he leaves office, Alan Dershowitz, the Trump-allied celebrity attorney, argued that Trump’s encouragement of this week’s Capitol riots was “constitutionally protected” speech. He said it would be his “honor and privilege” to take on the legal defense.

“It’s not a high crime or misdemeanor. What he said was protected by the First Amendment and it’s not subject to removal under the 25th Amendment,” Dershowitz told POLITICO. “He’s not unable to govern, he’s not incapacitated and I think grave dangers to the constitution are being posed by those partisans who want to weaponize the Constitution for political purposes.”

Others who were at Trump’s side when he was impeached in late 2019 issued similar objections to the notion that the president had committed an impeachable offense once more. Jay Sekulow, Trump’s longtime attorney who represented him during the 2019 trial, warned that instituting articles of impeachment now, with just days left in Trump term, would be “a gigantic mistake.”

“You could impeach him but he’s never going to be there for the trial. They’ll never have a trial in the Senate,” Sekulow said on his radio show. “Why would you put the country through that when the man’s term is over with and you got the ultimate victory your candidate is going to be the president of the United States?”

But the sentiment articulated by Dershowitz and Sekulow wasn’t shared across the spectrum. And, indeed, some lawyers who previously represented the president said the case currently being presented against him is stronger than the one he ultimately fended off in a Senate trial.

“Unlike the last time, where they didn’t even charge a crime, I could imagine that you could draft an article of impeachment that would actually make a legal argument that the president aided or abetted or actually elicited a riot,” said Robert Ray, a member of the president’s defense team during the last impeachment.

The division even among the president’s legal allies is a microcosm of the chaos Trump has sparked in recent days. The president’s instigation of Wednesday’s ransacking of the Capitol has thrown his own party into turmoil in the final days of his presidency, prompted resignations among his own cabinet members, and convinced Democrats in Congress to take swift action to remove him from office even as his term nears its conclusion.

“Today, following the president’s dangerous and seditious acts, Republicans in Congress need to follow that example and call on Trump to depart his office—immediately,” House Speaker Nancy Pelosi wrote in a letter to House members.

Trump’s initial impeachment came after it emerged that he solicited foreign interference in the 2020 election—pressuring the president of Ukraine for information on Joe Biden and his son Hunter. The Senate ultimately declined to convict, though one Republican, Mitt Romney, did back one impeachment article.

Slightly over a year later, Trump finds himself embroiled in another impeachment saga. And while Republicans, including White House veterans, have largely resisted the effort to push him out of office before his term ends, they are expressing far more disgust with his actions this go around.

"I was talking to some friends and when it happened, I felt very sad. It was a familiar feeling but I couldn’t place where I last experienced it,” said a former White House lawyer. “And then it came to me. I felt almost identical to the day I was 17 and learned Martin Luther King had been assassinated. It was a country I didn’t recognize.”

Behind closed doors, senior Republican aides and lawmakers have discussed how to punish Trump for his involvement in the riots and violence at the Capitol, including talk of pursuing the 25th Amendment to remove him from office. Sen. Lisa Murkowski (R-Alaska), said on Friday that the president should resign.

“He doesn’t want to stay there. He only wants to stay there for the title. He only wants to stay there for his ego,” Murkowski told the Anchorage Daily News. “He needs to get out. He needs to do the good thing, but I don’t think he’s capable of doing a good thing.”

So far, two of Trump’s cabinet members, Secretary of Education Betsy DeVos and Transportation Secretary Elaine Chao have resigned, citing Wednesday’s events.

Trump himself had not commented about the push for impeachment. But the White House issued a statement condemning it Friday afternoon.

“A politically motivated impeachment against a President, who has done a great job, with 12 days remaining in his term will only serve to further divide our great country,” said White House press secretary Judd Deere.

And some of Trump’s most vocal legal defenders did come to his defense in his absence.

Jonathan Turley, a George Washington University law professor who was a Republican witness during the House impeachment proceedings, said he has been fielding phone calls from members of Congress from both sides of the aisle asking for his guidance.

“There is a widely shared anger over the president’s speech. The rhetoric was wrong,” said Turley, who criticized the president’s rally as it was happening. But while he called the speech “inciteful” he said it would be considered protected speech.

“Consider the implications — it would mean Congress would impeach a president for a speech that would be deemed protected under existing case law,” Turley said. “It would be done without hearings or the normal deliberations for impeachment and that’s a curious way for members to express support for our Constitution.”

with reporting by Gabby Orr, Josh Gerstein and Sam Stein



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