This might be the best news Donald Trump has gotten in more than two months. Rudy Giuliani rushed to assume control of Trump’s legal team for the impeachment trial that now looks pretty likely once Chuck Schumer takes control of the Senate tomorrow, but the White House pushed back almost immediately:
President Donald Trump’s personal attorney Rudy Giuliani tells ABC News he’s working as part of the president’s defense team in his upcoming second impeachment trial — and that he’s prepared to argue that the president’s claims of widespread voter fraud did not constitute incitement to violence because the widely-debunked claims are true.
“I’m involved right now … that’s what I’m working on,” Giuliani told ABC News Chief White House Correspondent Jonathan Karl.
A few hours later, Giuliani — who led the president’s efforts to overturn the 2020 election results — was spotted at the White House.
A few hours after that, Hogan Gidley sent out this announcement:
Statement On President Trump’s Impeachment Defense Team:
President Trump has not yet made a determination as to which lawyer or law firm will represent him for the disgraceful attack on our Constitution and democracy, known as the “impeachment hoax.” We will keep you informed.
— J. Hogan Gidley (@JHoganGidley) January 17, 2021
By late yesterday, Giuliani had suddenly decided that he couldn’t work as Trump’s attorney. He might need to testify himself, and maybe not just at a Senate trial:
Rudy Giuliani now says he won’t on the Trump impeachment defense team. “Because I gave an earlier speech [at the January 6 Trump rally], I am a witness and therefore unable to participate in court or Senate chamber,” he tells me.
— Jonathan Karl (@jonkarl) January 18, 2021
That earlier speech contained Giuliani’s exhortation for “trial by combat” shortly before Trump told the crowd to go to Capitol Hill. Giuliani might be fortunate to only be a witness in Trump’s impeachment trial. One has to wonder whether the Department of Justice might be tempted to test Giuliani’s “combat” remark against the Brandenburg precedent in federal court for a case of incitement. It’s thin, but legally prosecutors at least have a theoretical case against Giuliani, more so than they would against Trump. And going after Giuliani won’t carry the potential political blowback that targeting Trump would generate.
So that’s one reason why Trump might be lucky not to have Giuliani for the defense in the Senate. The other is that Giuliani was about to pursue a bats**t-insane justification defense that might have galvanized Republicans to repudiate Trump once and for all:
Karl Rove says Rudy Giuliani's impeachment defense that "the attack on the Capitol and the attempt to end [Congress] certifying the election was justified" because their false election claims are true "raises the likelihood of more than 17 Republicans voting for conviction" pic.twitter.com/hf4JeerOFB
— Justin Baragona (@justinbaragona) January 17, 2021
“I think it’s all going to boil down to what the president’s defense is,” Rove added.
“Rudy Giuliani charted a very bad course in the morning papers,” Rove said, pointing to comments by the attorney suggesting the president could not have incited the deadly riots at the Capitol earlier this month because his unproven claims of election theft were true. The House last week impeached Trump over his role in the rioting, making him the only president to be impeached twice.
The election fraud argument, Rove noted on Sunday, “has been rejected by over 50 courts,” including some Trump appointees.
A Giuliani defense, he added, “raises the likelihood of more than 17 Republicans voting for conviction.”
No kidding. It would be the real-life equivalent of Colonel Jessup’s “you’re g–damned right I did” on the Code Red question in A Few Good Men. That might have been an overdue moment of national clarity, but it would also bury Trump, Giuliani, Mo Brooks, and everyone else who participated in that rally prior to the riot. The question might be just how many Republicans would vote for acquittal after having Giuliani argue that the sacking of Congress was justified. Perhaps the same six who voted to challenge the electors, but that’s probably about it.
Gidley’s statement is probably the defense Trump will mount instead. He will attack it as unfounded in the Constitution and nothing more than retribution for having won in 2016. The constitutional issue might be enough to convince Republicans to short-circuit the trial anyway, but not if the Trump team’s argument is you had it coming, you b*****ds.