Trump parted ways with his initial legal team over the weekend in part because they refused to advance the fraud claims, but Castor insisted he was not pressured to adopt that strategy ahead of the trial, which begins next Tuesday.
“I don’t know where people got that notion that was some sort of litmus test to get to defend the president, because as you saw from the document I filed, which had to be approved by the president personally, there isn’t anything in there about the election being stolen,” Castor said.
Indeed, Tuesday’s filing, written by Castor and his co-counsel David Schoen, does not argue that the election was “stolen” from Trump. But it does state that Trump “denies” the House managers’ assertion that it was false for the former president to say he won the election in a “landslide.”
The filing also maintains that Trump has a First Amendment right to express his opinion that the election results were inaccurate or disputed. The House impeachment managers argued in a separate filing Tuesday that Trump’s continued advancement of that false claim backs up their charge that he indicted the Jan. 6 insurrection at the Capitol, which left five people dead.
Top Senate Republicans have already warned Trump’s legal team against trying to re-litigate the false fraud claims, and many of them have focused squarely on the argument that a former president cannot be put on trial for impeachment charges.
“If they start trying to prove that Georgia and Pennsylvania and Wisconsin were stolen, that’s when you’re going to lose everybody,” Sen. Lindsey Graham (R-S.C.) said on Tuesday.
Last week, 45 out of 50 GOP senators voted in favor of a procedural motion arguing that it was unconstitutional for the Senate to hold an impeachment trial for a former president because that individual is already out of office. Castor said the Senate has no jurisdiction over a private citizen, adding that “it would be almost the equivalent of the president having died — they can’t remove him from office because he simply is unable to be removed because he’s not there.”
But opponents of that argument note that the Constitution gives the Senate the “sole power to try all impeachments,” and that one of the potential punishments for conviction is barring that former president from holding federal office again. Moreover, they say, under Trump’s standard an official subject to impeachment could simply resign before the trial begins in order to evade accountability.
Based on last week’s vote, it is highly unlikely that the Senate will reach the two-thirds threshold required to convict Trump on the House’s charge that he incited the Jan. 6 attack. If all 50 Democratic senators vote in favor of conviction, at least 17 Republicans would need to join them in order for Trump to face punishments including a ban on holding office in the future.
In his radio interview Wednesday, Castor outlined the procedural arguments against a conviction, after the House impeachment managers wrote on Tuesday that Trump bears “unmistakable” responsibility for the attack on the Capitol.
“Just because somebody gave a speech and people got excited, it doesn’t mean it’s the speechmaker’s fault — it’s the people who got excited and did what they know is wrong,” Castor said, referring to Trump’s remarks to the crowd the just hours before it stormed the Capitol.