Dealing a blow to former Republican President Donald Trump and his impeachment legal team, a top conservative lawyer and legal scholar has rejected out of hand the team's primary defense strategy.
In a Wall Street Journal op-ed, Washington, D.C. lawyer Charles Cooper dismissed the Trump team's central argument that it is unconstitutional to impeach a president who has already left office, saying that their view "defies logic."
Cooper is a stalwart conservative and one-time Trump insider who has defended several Republicans closely aligned with the former president.
Charles Cooper, a leading conservative constitutional lawyer, has broken with the Republican argument against convicting Donald Trump. He said suggesting that a former president cannot be tried for impeachable offenses "defies logic."https://t.co/oCKHuKUZgo
— The New York Times (@nytimes) February 8, 2021
Cooper's op-ed came just a day before Trump's defense lawyers, Bruce L. Castor Jr. and David I. Schoen, filed a brief claiming that the Senate holds no jurisdiction to try an already unseated president.
Castor and Schoen's brief insists that because the Constitution does not explicitly state that the Senate can try former officials, the case against Trump, which goes to trial tomorrow, should be dismissed entirely.
But in his op-ed, Cooper stated plainly that Castor Jr.'s and Schoen's argument is essentially nonsense because the Constitution's impeachment provisions allow for the Senate to bar officials from ever again holding office in the future.
As Cooper put it:
"The provision cuts against [Castor Jr.'s and Schoen's] interpretation... it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders."
Cooper also criticized Senator Rand Paul's motion last month along the same lines, on which Trump's lawyers' argument is based, and called upon the Senate to dismiss it.
"The senators who supported Mr. Paul's motion should reconsider their view and judge the former president's misconduct on the merits."
Cooper is a revered lawyer and constitutional scholar with undeniable right-wing bona fides that predate Trump's political rise by decades.
He began his career in Washington by clerking for former Chief Justice William Rehnquist, one of the most conservative Supreme Court justices in American history, and his time in Washington has been marked by legal stances that some would consider borderline extremist.
During his time in former Republican President Ronald Reagan's Justice Department, Cooper argued that employers should be allowed to decline to hire a person with AIDS. As a private lawyer, he has advocated for prayer in schools and been honored as Republican Lawyer of the Year by the National Rifle Association.
He has deep ties to the former Trump Administration as well. In its early days, Cooper was considered for the position of solicitor general. After opting to remain in private practice, he represented former Attorney General Jeff Sessions during the Russia investigation and Trump's former national security advisor John Bolton during Trump's first impeachment in 2019.
On Twitter, many applauded Cooper's analysis and willingness to speak out against his own party's tactics.
Article I, Section 3, Clause 6, states: "The Senate shall have the sole Power to try all Impeachments."
— WGBone (@CookDayNight) February 8, 2021
The problem with having principles is getting blowback from your (former) allies when you don't carry water for them each and every time. Cooper isn't going to stop being conservative, or a thorn in Democratic sides, but contrast him with @JonathanTurley
— Syncopated Politics (@SyncPol) February 8, 2021
despite their professional privileges and obligations, far too few lawyers break from their tribal loyalties and apparent short-term interests in recent decades. when a prominent one does, eg Charles Cooper, it's a bracing example that merits recognition. #lawyers https://t.co/3vCUxnkz9r
— James Strock (@jamesstrock) February 8, 2021
Some argue that voters, not the Senate, should decide if Trump can return to power. No sir!
Our Founders made clear through their writings, speeches and the Constitution that democracy must be protected from a populist demagogue and would-be tyrant. Convict! Or invite disaster. https://t.co/OuSFU8qazK
— Mike Collier (@CollierForTexas) February 8, 2021
There is no serious question about this: Trump impeachment trial is 100% constitutional and appropriate. R Senators who say otherwise are shirking their duty. https://t.co/E5xKqLymAi
— Jennifer Rodgers (@JenGRodgers) February 8, 2021
And some wondered if Cooper's rebuttal signaled a deeper break with Trump within the GOP than previously thought.
One has to wonder whether the progress of the investigation signals that there was high level coordination between Militias and Trump team. The new videos of Roger Stone for example. May be some cold GOP Senate feet.
— David Doak (@SouthPoint1000) February 7, 2021
Love to see it. Looks like experts are weighing in to bolster Republican votes to convict.
— Katherine Keszkowski (@esk5212) February 7, 2021
Many others were angered by the fact that Cooper's rebuttal even needed to be stated.
The GOP will defy the Constitution and any law in order to acquit Trump. Because thats what the GOP is: Trump over principles 😠
— LEO INES (@LEOINES1) February 8, 2021
It's ridiculous that this is even controversial, ESPECIALLY from "rule of law" conservatives. What reality are we in where someone can just decide not to go to their own trial?
— Actually Big Sean (@seanrm92) February 8, 2021
The GOP has taken the position of being the party of “law and order" and now must live up to that claim. How can they be taken seriously anymore if they accuse the Democrats of wrongdoing?
— Michael Rizzello (@MRizzello) February 8, 2021
How Cooper's op-ed will impact the trial, if at all, remains to be seen.
But some believe it could provide cover for Republican Senators who might want to change course following the vote on unconstitutionality forced by Senator Paul last month, which caught many Senators off guard. Several Republicans in the Senate have since sought to distance themselves from their vote, signaling that their minds remain open both to the trial and the possibility of Trump's guilt.