The House Republicans who carried Trump’s water during the impeachment process, such as Reps. Jim Jordan (Ohio) and Douglas A. Collins (Ga.), stuck with the program, fighting tooth and nail against voluminous evidence that left little doubt about Trump’s leveraging of aid to Ukraine to pursue a personal political advantage by pressing for an investigation of the Bidens.
Dershowitz and Starr will not be able to take that tack.
Starr already has disavowed the president’s preferred see-no-evil strategy and essentially conceded the strength of the House’s impeachment case. Following the testimony in November by Gordon Sondland, U.S. ambassador to the European Union, conceding that Trump had demanded a “quid pro quo” of Ukrainian President Volodymyr Zelensky, Starr on Fox News pronounced it “one of those bombshell days" and said, “It doesn’t look good for the president, substantively.”
That admission might not inhibit some lawyers from later arguing on behalf of a client, but Starr — who as an independent counsel led the drive to impeach Clinton and in 2016 was forced out as president of Baylor University after mishandling sexual assault allegations on campus — seems unlikely to risk another major hit to his reputation by claiming Trump’s utter innocence.
As for Dershowitz, he had scarcely been announced as joining the president’s defense team before he began backpedaling from any suggestion that he would be defending Trump on the facts.
“I will be there for one hour, basically,” Dershowitz told “The Dan Abrams Show” on SiriusXM radio, and said on MSNBC that he would argue that the abuse of power is not an impeachable offense. (It is, but let’s leave that aside.)
It’s not clear, though, that Starr or Dershowitz will play a significant role in the Senate trial. That may fall to the Trump attorneys with actual trial experience: Robert Ray, who succeeded Starr as independent counsel in the Whitewater investigation of the Clintons, and former Florida attorney general Pam Bondi, who was also a state prosecutor.
Starr and Dershowitz, by contrast, are primarily appellate lawyers, and at age 73 and 81, respectively, are no longer at the top of their games. Moreover, if anyone on Trump’s side had thought it through, the formidable challenges of having the genteel Starr and the truculent Dershowitz share leadership responsibilities should have been obvious. We may well see the high-profile members of Trump’s “dream team” more on TV than leading at trial.
Still, whatever the prominence of both men’s speaking roles, those roles will include legal arguments about impeachability. They are likely to argue that the Trump’s improper conduct — to which a long line of witnesses attested — does not justify his removal from office. They may well also assert that removal is not warranted with an election only months away in which voters can render their verdict on the president’s conduct.
I have debated Starr on television about Trump-related topics a number of times, and his principal line of defense had little to do with Trump’s actual conduct. Rather, it involved impeachment’s damage to civil society, which he has called a “terrible thorn in the side of American democracy.” Many of Clinton’s supporters would view that pronouncement with bitter irony.
It will be interesting to see how such a high-minded approach suits his temperamental, admit-no-wrongdoing client. In the wake of Starr’s investigation of Clinton, Trump referred to him as a “wacko” and a “lunatic.” If Trump becomes dismayed with Starr, dismissing counsel mid-trial wouldn’t be out of character for this impulsive president, particularly since his acquittal is essentially assured.
But the legal arguments from Starr and Dershowitz should be welcomed by Republican senators. Nearly all of them have appeared too cowed by Trump to even hint that the president’s actions were improper. The impeachability arguments that Starr and Dershowitz are likely to make will at least provide the senators with a justification that, while terribly flawed, isn’t disconnected from reality.