Editor’s Note: Elliot Williams is a CNN legal analyst. He is a former deputy assistant attorney general at the Justice Department and a principal at The Raben Group, a national public affairs and strategic communications firm. Follow him on Twitter @elliotcwilliams. The views expressed in this commentary are his own. View more opinion on CNN.
Donald Trump may end up as a very lucky guy.
Lucky because if he gets acquitted again and avoids disqualification from future office in his second impeachment trial – which is entirely possible, if not likely – he will manage to avoid any sanction from the Senate despite having received lousy representation from his lawyers throughout the process.
To be clear, 45 US senators – far more than needed to sink a conviction – were already on the record opposing the constitutionality of the trial even before it started. His lawyers very intelligently used only a handful of the 16 hours they had been allotted for their arguments in the case, as every word they uttered would have risked their stepping in it and alienating those senators on their side.
Still, the very little time Trump’s lawyers spent speaking didn’t do their client any favor. The trouble started Tuesday with Trump’s attorney Bruce Castor’s opening arguments, a meandering mess that was widely panned, including by, as CNN reported, President Trump himself.
The poor performances continued through Saturday, after Trump’s defense wrapped up its case and responded to questions from senators.
While the President is entitled to present a robust defense, his lawyers make a mockery of the process when they stand in the well of the US Senate and misstate basic facts. I’m not talking about confusing the name of the Georgia secretary of state with the quarterback for the Pittsburgh Steelers, continuing a trend of mispronouncing the name of the vice president of the United States, or causing the Senate chamber to erupt in laughter by saying witnesses should give depositions in Philadelphia. The President’s lawyers made a series of clear missteps or outright representations that crossed the line from zealous representation to bad lawyering.
For instance, President Trump’s lawyer Michael van der Veen stated that the former President encouraged his supporters to respect the Electoral College count. The statement was patently false, a fact borne out by months of the President’s doing precisely the opposite. He went further, arguing that “one of the first people arrested was a leader of Antifa,” not a supporter of the President. This, too, was false, as the FBI has said Antifa activists are not suspected in the January 6 insurrection.
He argued that the President’s first tweets after his supporters took the Capitol were for them to “stay peaceful with no violence.” This was also untrue. On the contrary, the President’s first tweet after rioters stormed the US Capitol was at 2:24 p.m., when he went after his own vice president. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution, giving States a chance to certify a corrected set of facts, not the fraudulent or inaccurate ones which they were asked to previously certify. USA demands the truth!” he tweeted.
Van der Veen gave a false answer about whether the President knew Pence was in danger. He misleadingly omitted Trump’s remarks defending violence. He and his colleagues’ characterization of the results of the 2020 election even drew a rebuke from a prominent Georgia election official, a self-described conservative.
Reasonable minds can disagree on some of the complex legal and constitutional questions at issue in the President’s trial. (And that’s putting it charitably, given how many top legal minds from across the ideological spectrum have condemned some of the basic arguments being pushed by Trump’s team.)
However, a robust defense doesn’t include misleading the public and the senators adjudicating the President’s conduct. In another universe, Trump’s lawyers’ conduct could have had serious consequences either for their own futures, or their client’s.
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The President should thank his lucky stars that he can receive poor representation and possibly still come out just fine, as it’s likely not enough GOP senators will vote to convict him. Recognizing that impeachment is not a criminal case, it bears mentioning that criminal defendants – many of them Black and Brown – do not fare as well when they are not able to receive effective assistance of counsel. Public defenders regularly are plagued with excessive caseloads and a lack of resources that vastly limits their clients’ ability to get a fair trial. When their lawyers fail them, or simply aren’t resourced enough to perform their jobs effectively, they can’t rely on a friendly group of 45 senators to ensure their freedom.
President Trump’s lawyers did not serve him well this week. If his impeachment trial continues as it’s been going, it looks like that isn’t going to matter.