On Sunday, hours after the news first broke that former President Donald Trump’s impeachment trial defense team had left him high and dry, Trump announced that two veteran trial lawyers had stepped up to the plate.
David Schoen and Bruce L. Castor, Jr. will lead Trump’s defense team. The former president announced that “Schoen has already been working with the 45th President and other advisors to prepare for the upcoming trial, and both Schoen and Castor agree that this impeachment is unconstitutional – a fact 45 Senators voted in agreement with last week.”
“It is an honor to represent the 45th President, Donald J. Trump, and the United States Constitution,” Schoen said in a statement.
“I consider it a privilege to represent the 45th President. The strength of our Constitution is about to be tested like never before in our history. It is strong and resilient. A document written for the ages, and it will triumph over partisanship yet again, and always,” Castor added.
Schoen’s litigation has resulted in reform to prisons, jails, public education, foster care, defense of the indigent, and various institutions in the South. In 1995, the American Bar Association honored his work with the National Pro Bono Publico Award. More recently, Schoen represented victims of terrorism under the Anti-Terrorism Act, traveling overseas to take depositions from terrorists. He currently focuses on civil rights litigation in Alabama and federal criminal defense work in New York.
Schoen serves as the chair of the ABA’s Criminal Justice Subcommittee of the Civil Rights Litigation Committee. He holds an LL.M. degree from Columbia Law School and has taught at Seton Hall Law School.
Bruce Castor served as district attorney of Montgomery County, Pa., from 2000 to 2008, commissioner of Montgomery County, solicitor general of Pennsylvania, and acting attorney general of Pennsylvania. The National Association of Government Attorneys gave him the Trial Advocacy Award in 1995, honoring his work investigating and prosecuting homicides.
Castor was inducted into the Pennsylvania Police Hall of Fame in 2007, among other honors. Castor earned his law degree from Washington and Lee University and received advanced education from the National College of District Attorneys and the FBI National Academy in Quantico, Va.
House Democrats — and 10 Republicans — voted to impeach Trump for “incitement of insurrection” regarding the Capitol riot on January 6. While the president’s legal team has a short time to prepare, it seems Schoen has focused on the claim that it is unconstitutional to try an impeachment in the Senate after a president has left office.
The former president has many legal avenues for defense. His legal team may argue that the president never encouraged his supporters to engage in violent acts against the Capitol. The team may also point to Trump’s repeated calls for peace during the attack. Legally, “incitement” only involves direct calls to violence, due to the wide range of speech protected under the First Amendment.
As for “insurrection,” Democrats have argued that the Black Lives Matter and antifa riots over the summer of 2020 did not fit the legal definition of “insurrection.” Declaring the Capitol riot an “insurrection” would suggest the unrest of the summer also fits that definition.
Yet it seems Democrats chose the term “insurrection” in order to wield impeachment as a congressional declaration that January 6 was an insurrection under the terms of Section 3 of the 14th Amendment, which disqualifies anyone who supported an insurrection from holding public office in the United States. This provision barred former officials of the Confederacy from serving in the federal government, but Democrats seem primed to use the impeachment as an excuse to try to oust any Republicans who supported Trump’s challenge of the 2020 election.
Finally, House Speaker Nancy Pelosi’s (D-Calif.) timing of impeachment proved suspect. After delaying a few days after the Capitol riot, Pelosi rushed the impeachment through the House — without a special counsel or any other kind of investigation and with very little debate — because waiting to hand the article of impeachment over to the Senate until Joe Biden had already become president.
Pelosi claimed that Congress needed to oust Trump immediately after the Capitol riot, yet she also waited days before rushing the impeachment, and she delayed the transmission of the article to the Senate.
Impeachment is a political process, not a legal one, but each of these factors undermines the Democrats’ case. It is extremely unlikely that enough Senate Republicans vote to convict and remove Trump, but the former president’s legal team still needs to make a powerful defense.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.