The GOP's Senate impeachment trial strategy got blown up by Trump's legal team — for good reason

The political grenade Trump threw by announcing his defense counsel star power might not be the approach Republicans wanted. But it just might be the winning one.
Image: Kenneth Starr
Independent Counsel Kenneth Starr is sworn in on Capitol Hill prior to testifying before the House Judiciary Committee's impeachment hearing on Nov. 19, 1998.Doug Mills / AP file
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By David Mark

This isn’t what Mitch McConnell wanted.

The Republican Senate majority leader from Kentucky has, since the House impeached President Donald Trump on Dec. 18, made clear his preference that a Senate trial over removing the president be of the shortest possible duration and the narrowest scope. After the trial opened Thursday amid solemn pomp and ceremony, McConnell and fellow Senate Republicans are now discussing speeding up proceedings to limit the time allowed for opening arguments.

Stacking his legal team with superstar figures gives Trump more control of the theatrics and narrative of the trial.

It’s part of the GOP’s broader approach to limit the attention paid to the trial, in which the president, 73, faces counts of abuse of power and obstruction of justice related to the Ukraine military aid affair. For Republican senators that means no witnesses and breaching established practice by limiting reporters’ access to lawmakers in the halls of the Capitol.

But the Senate Republicans’ scaffolding for a quiet-as-possible Trump impeachment trial collapsed Friday when the White House announced the president’s made-for-TV defense team. The mega-watt lineup includes the independent counsel who prosecuted President Bill Clinton’s impeachment in 1999 — Ken Starr — and successor Robert Ray; lightning-rod cable TV talking head (and former O.J. Simpson defense attorney) Alan Dershowitz; and longtime Trump legal allies Jay Sekulow, former Florida Attorney General Pam Bondi and White House counsel Pat Cipollone.

The political grenade Trump threw with Friday’s announcement might not be the approach GOP lawmakers wanted. But it just might be the winning strategy.

The Senate impeachment trial was always going to draw attention whether McConnell liked it or not. Stacking his legal team with superstar figures gives Trump more control of the theatrics and narrative of the trial. And if nothing else, the president is a master of using the media to change the storyline to promote his ends.

Moreover, Trump knows much better than Republican senators what works politically with the party’s base: to always be a fighter, as he learned under the tutelage of McCarthy-era lawyer Roy Cohn; to fight no-holds-barred, go for the jugular in opponents, home in on their weaknesses and never relent. That style, of course, won him the presidency and led so many established party leaders to the exits.

And while GOP elders like McConnnell and several senators facing tough reelection fights might think he needs to cut down on the tweeting and provocative behavior to have a hope of winning over swing voters in November, there’s little sign that they’re right. Given his strong, consistent negative ratings and the implied futility of his trying to win crossover voters, Trump’s best hope is to gin up his base as aggressively as possible while shaving down turnout of Democratic groups even slightly — as worked for him in 2016.

Polling in some key states seems to confirm the merits of this calculation, though Democrats have plenty of time to change the dynamics before Election Day. The president has held steady, and even slightly ticked up, in the crucial purple state of Wisconsin running solely on the base strategy. A poll released this week found the highest job-approval rating for Trump in Wisconsin since he took office.

And In parts of rural Pennsylvania, there are signs his base strategy is working. In November 2019 the GOP flipped local government control in six counties, mostly in the southwest part of the state where Democrats have long been competitive but Trump ran especially well in 2016.

Perhaps nothing better illustrates why the Trump go-for-broke strategy is the best one than the example set by the Democrats. They put their chips on a figure of dignified seriousness and purpose, former FBI Director Robert Mueller, to find impeachable evidence against Trump when he was tasked by the Justice Department to probe Russian meddling in the 2016 elections.

But their bet on Mueller didn’t pay off. His July testimony about his findings before a House committee left Democrats “disappointed they did not get the made-for-TV accusatory moment they wanted,” as The New York Times described it at the time. It was an entirely separate case of Trump pressuring the Ukrainian president to dig up political dirt on a potential 2020 opponent that created sufficient public outrage to get the impeachment process off the ground.

What Democrats really needed in the original Russia probe was a Ken Starr-like figure. Somebody with sterling legal credentials who nonetheless was a rabid partisan willing to keep open an investigation until finding a clear violation, which Clinton provided in spades once his affair with intern Monica Lewinsky and his dodgy legal responses about it were discovered by the Starr team.

Starr, after all, was originally installed to investigate the Whitewater scandal, involving a land investment by the Clintons in rural Arkansas shortly before Bill Clinton won the governorship in 1978. But Starr’s team would rework the same ground repeatedly to turn up a crumb or two of new information in order to justify keeping the investigation going.

In fact, Starr is the ideal lawyer for Trump’s ambitions, because his presence also ensures that the Clintons will be a major undercurrent of the Trump trial, a diversionary tactic to focus attention on alleged Clinton offenses rather than his own. This has been a recurring — and successful strategy — for Trump since he entered the 2016 presidential race.

In just one episode while the Republican presidential nominee, Trump took an unusual step shortly before the second presidential debate in October 2016 against Democratic rival Hillary Clinton of meeting with three women who had previously accused Bill Clinton of sexual assault or harassment.

It’s also worth noting that Starr and the other members of the defense team are no legal slouches. Bill Clinton’s impeachment on charges of lying and obstruction of justice, both of which he was acquitted on in his own Senate trial, almost certainly wouldn’t have been possible without Starr’s tireless, years-long investigation and strategic leaking to the media.

Dershowitz, meanwhile, has long been a controversial figure but an effective advocate. The Harvard Law School professor emeritus helped win acquittal of O.J. Simpson in 1995. In another famous victory,less than a decade earlier, he won an appeal of socialite Claus von Bulow’s conviction on charges that he tried to kill his wealthy wife.

Trump’s Senate impeachment trial figures to be as much a public spectacle as a solemn dispensing of duty. Any time that’s the case, it works to Trump’s advantage.

It’s true that as Trump’s impeachment trial gets underway in earnest, this play-to-the-cameras strategy is a huge gamble. Even at this late date, Democratic House members are producing new evidence (such as.a batch of documents released Friday night raising allegations of surveillance by Trump-associated thugs against the ousted U.S. ambassador to Ukraine).

There’s also the wildcard of Chief Justice John Roberts, sworn in Thursday to preside over the proceedings. According to prevailing interpretations of Senate impeachment rules, even by Democratic-leaning scholars, Roberts’ role will be rather passive. Still, Roberts could seek a more assertive role that could shake things up, such as ruling that witnesses be called.

Whether it’s what the Founders intended when they considered how to deal with a rogue president, Trump’s Senate impeachment trial figures to be as much a public spectacle as a solemn dispensing of duty. Any time that’s the case, it works to Trump’s advantage. At least so far.

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