Atlanta-based attorney David Schoen told The Washington Post in an interview Sunday night that he will not “put forward a theory of election fraud. That’s not what this impeachment trial is about.”
Schoen, who was named to head Trump’s defense team Sunday evening, along with Bruce L. Castor, a former prosecutor in Pennsylvania, said he would concentrate on making the case that it is unconstitutional to impeach a president after he has left office.
A majority of Republican senators have already embraced that position, one that allows them to vote to dismiss the case without considering the merits of the charge against the president.
House Democrats have challenged that argument, citing past impeachment cases against former officials. Democratic impeachment managers are also expected to highlight Trump’s false claims of fraud when they file their first major brief Tuesday in advance of Trump’s trial for allegedly inciting the Jan. 6 attack on the U.S. Capitol.
In another interview Monday, Schoen said he would mount a two-part strategy, arguing the constitutional issue and citing the First Amendment as a defense to incitement. “If this speech is considered incitement for insurrection, then I think any passionate political speaker is at risk,” he said, adding that Trump fully backs his approach. “I told him what I intend to do and he supports that 100 percent,” he said.
Still, Trump continues to focus on the issue of fraud in talks with associates from his private Mar-a-Lago club in Florida, according to people familiar with the conversations.
“Our primary focus will be on the unconstitutional nature of the Democrats’ impeachment push,” Trump spokesman Jason Miller said Monday. “Overall, you will expect to see four or five major themes.”
Schoen and Castor replace a team led by South Carolina attorney Karl S. “Butch” Bowers Jr., who abruptly parted with Trump after the former president pushed to litigate his allegations of fraud during the impeachment trial, according to people familiar with the internal discussions.
Bowers did not respond to requests for comment.
“The only thing that Butch has told me is that a defendant deserves to have a lawyer who will prosecute his case in the manner in which he or she believes it should be prosecuted.” said Tim Pearson, a South Carolina political operative who shares an office with Bowers. Pearson said Bowers did not tell him specifics of the case because of attorney-client privilege.
Miller denied that a dispute about Trump’s election fraud claims led the Bowers team to step away, calling that notion “fake news.” Schoen told The Post that he participated in calls between Trump and the Bowers team, and “it is simply not true that other lawyers got out of the case because the president was pressing election fraud.” While the former president mentioned fraud, he did not insist that it be part of the defense, Schoen said.
Initial indications of how both sides plan to approach the trial are expected to emerge Tuesday, when both the House Democrats and Trump’s team are due to make their first filings with the Senate.
A person familiar with the president’s legal brief, speaking on the condition of anonymity to describe internal preparations for the trial, said disputing the 2020 election — or making unsubstantiated claims of fraud — would not be a centerpiece of the case, but declined to say whether the topics would be mentioned at all.
A person familiar with the House strategy, also speaking on the condition of anonymity to describe internal preparations, said the Democratic brief will probably be divided into two parts. The first will address the constitutional question, arguing that a former president can be impeached after leaving office. The second part is expected to lay out the case against Trump in inciting the events of Jan. 6. Part of that incitement, the House impeachment managers have said, was his repeated false claims that the election had been rigged.
In making that case, they are expected to point to comments by Republicans such as Rep. Liz Cheney of Wyoming, who said the mob attack on the Capitol was set in motion by the president. “No question, the President formed the mob, the President incited the mob, the President addressed the mob. He lit the flame,” she said in a statement that day.
Senate Minority Leader Mitch McConnell of Kentucky also put blame on Trump, saying on the Senate floor that “the mob was fed lies” before the rioters stormed the Capitol.
The Trump team is expected to make a more limited filing on its response to the summons issued for the Senate trial. A more detailed filing outlining the Trump team case is due Feb. 8.
Trump has also told advisers that he plans to lie low for another few weeks, a close adviser said, and any public appearances ahead of the Senate trial are unlikely to sway many senators. Two senior Republican aides said their bosses — and McConnell — had not gotten calls from the former president lobbying for votes against conviction.
The trial is to begin Feb. 9.