“I do solemnly swear (or arm) that I will support, obey and defend the Constitution of the United States and the
Constitution of this Commonwealth and that I will discharge the duties of my office with fidelity, as well to the court as to the client, that I will use no falsehood, nor delay the cause of any person for lucre or malice.” (Pennsylvania Attorney Oath, 42 Pa. C.S.A. Section 2522.)
Ted Schwartz’s commentary of me and my representation of former President Donald J. Trump in his impeachment trial is abject libel and born of ignorance and bias. It was anything but the “calm, objective analysis” it portends to be. It is driven by the same unbridled hatred and ignorance that fueled the physical attacks on my home. As I argued during the trial, political hatred has no place in the Senate and no place in the law.
I will first address Mr. Schwartz’s failure to understand the trial and our defenses and then address his personal and
professional attacks on me and our duty as attorneys to defend the Constitution. I will refrain from ad hominem attacks
against Mr. Schwartz and let the reflection of his career as seen at twilight speak for itself.
To be clear, when Bruce Castor asked me if our firm would represent former President Trump, I did not hesitate. I saw it as an amazing opportunity to defend our Constitution and teach people about our Constitution on a world stage. We had only two preconditions. No Rudy and no election fraud claims. From there, we put together a team of fine lawyers and legal professionals and worked hard to build a strong, ethical constitutional defense brought with fidelity and zeal.
Contrary to Mr. Schwartz’s assertions, the defenses we mounted were cognizable, meritorious, and axiomatic to anyone
familiar with the Constitution. There were four: (1) jurisdiction; (2) U.S. Senate Rule XXIII; (3) free speech under the First Amendment; and (4) due process under the Fifth Amendment. The House Managers argued that the Constitution did not apply to the impeachment proceeding. The Constitution was clearly under attack and needed a strong defense. For my critic’s edification, I summarize each of the defenses below.
The first defense, jurisdiction, was cogently argued by co-counsel David Schoen. In short, the Senate lacked jurisdiction
over former President Trump because at the time of the trial he held no public office from which he could be removed.
Additionally, the Constitution limits the remedy available to the Senate in cases of impeachment to that of removal from office. Thus, the Senate lacked jurisdiction over former President Trump because he held no public office from which he could be removed, rendering the Article of Impeachment moot and a nonjusticiable question. The Senate required this argument be made first.
The second defense, which Mr. Schwartz completely ignores in his commentary, was based on a violation of Senate Rule of Procedure XXIII. That rule, concerning how the Senate conducts impeachment trials, states that “an article of
impeachment shall not be divisible for the purpose of voting thereon at any time during the trial.” By charging multiple
alleged wrongs in one article, the House of Representatives made it impossible to guarantee compliance with the
Constitution’s mandate in Article I, Section 3, Clause 6 that permits a conviction only by at least two-thirds of House
members. The House charge ran afoul of Rule XXIII by interweaving differing allegations rather than meting them into
counts of alleged individual instances of misconduct. Because the Article of Impeachment alleged multiple wrongs in a
single article, it would be impossible to know if two-thirds of House members agreed on the entire article, or just on parts, as the basis for their votes to convict.
The House failed to adhere to strict Senate rules and, instead, chose to make the article as broad as possible in the hope
that some Senators might agree with parts, and other Senators agree with other parts, to create the illusion of a two- thirds majority. This was a very strong defense to which the House Managers had no argument and no reply.
The third defense was that former President Trump’s Jan. 6, 2021, speech was unequivocally protected speech under the First Amendment. The House Managers ignored Supreme Court precedent directly on point holding that elected officials have core First Amendment rights to engage in political speech. Instead, the House Managers attempted to analogize former President Trump to a “fire chief” or “a guy at the bar.” Landmark Supreme Court cases support our argument that former President Trump had enhanced free speech rights as an elected official. Additionally, his Jan. 6 speech was selectively edited by the House Managers to appear as some brazen “call to arms,” when former President Trump actually advocated peaceful action in a speech that fell far below the constitutional standard for “incitement.”
Applying the dictates of well-established Supreme Court precedent enunciated in Brandenburg v. Ohio, 395 U.S. 444
(1969), former President Trump’s speech neither explicitly nor implicitly encouraged the use of violence or lawless action, nor was it intended to result in the use of violence or lawless action. Additionally, imminent lawless action was not the likely result of his speech. Not only did former President Trump’s speech advocate for peaceful action, but as
demonstrated during the course of the trial and, undisputed by the House Managers, the riots of January 6 were
premeditated and preplanned by radical fringe groups.
The fourth defense was that the House deprived former President Trump of due process of law in rushing to issue the
Article of Impeachment and by ignoring its own procedures and precedents going back to the mid-nineteenth century.
The lack of due process included, but was not limited to, the House’s failure to conduct any meaningful committee review or other investigation, its failure to engage in any full and fair consideration of evidence in support of the Article and its failure to allow former President Trump’s position to be heard in the House Chamber. Process was abused when the House withheld transmitting the Article of Impeachment to the Senate for nearly two weeks, until after then President Trump’s term expired. This abuse precluded Chief Justice John G. Roberts Jr., from presiding over the trial and instead ensured the senior member of the majority party would preside over the trial thereby making him judge and juror. Sen. Patrick Leahy had already publicly prejudged the result. The process itself was constitutionally awed inasmuch as the basic tenets of the right to notice and a hearing were violated when the Senate passed the rules and procedures literally on the eve of trial and where there was no opportunity for the fair disclosure of information related to the charge. The House Managers had no meaningful response to this defense.
These four defenses were meritorious and were asserted in good faith. Most went unrebutted. As to the First
Amendment, the House Managers attempted to make up their own law. The “Raskin Doctrine” would use a “common
sense” scale to determine whether violence after speech was “foreseeable.” The “Raskin Doctrine” was an exercise in
intellectual dishonesty and had no basis in law. The House Manager who manufactured the doctrine, constitutional law
professor Jamie Raskin, is an attorney. Yet he was spared ethical attacks by Mr. Schwartz.
Mr. Schwartz also ignored other tactics by the House Managers that deserved his scrutiny. For example, the trial began on Feb. 9 at 1 p.m. The House Managers emailed the defense their evidence at 2:36 p.m., nearly two hours after the trial had begun. In fact, the House Managers showed their evidence to the senators before providing it to the defense. Mr. Schwartz alleges, with no basis, that I was unethical to “assert a position directly contrary to a position that that same lawyer asserted on behalf of another client in a different matter.” Yet he makes no mention of any House Manager shown on video during the trial contesting the results of the 2016 election while asserting that such contest formed the basis of impeachable conduct by former President Trump.
Furthermore, and perhaps most telling, is what Mr. Schwartz, critics like him and the media continue to ignore. As I
argued at the trial, the House Managers—members of Congress sworn to uphold the Constitution who happen to also be licensed attorneys—seemingly doctored evidence in the case against former President Trump. They have never denied they altered evidence. I remain shocked.
Beyond his omissions, Mr. Schwartz is mistaken in several of his claims. He asserts that the threat letter signed by 140 law professors was in support of jurisdiction, and my “personal attack” on them was “deplorable.” In fact, the letter written concerned the First Amendment argument which, as detailed above, is separate and apart from the jurisdictional question. Moreover, rather than author a legal position on the First Amendment, these law professors espoused without authority that any First Amendment defense would be “legally frivolous.” Such language is tantamount to calling for disciplinary sanctions. In other words, this letter was a direct threat to my law license if I defended former President Trump. Given that the letter was issued before the defense brief was even led, this was an outrageous attempt to intimidate any lawyers who would defend former President Trump. At trial, I called them partisan. That was not a personal attack, nor was it deplorable. It is the truth.
I knew going into the impeachment trial that we would have to give a vigorous defense for the First and Fifth
Amendments, but I am surprised that we now have to defend the Sixth. The type of criticism launched by the 140 law
professors and Mr. Schwartz and critics like him is an attack on an individual’s right to counsel based on that individual’s political views. This type of criticism goes straight to the jugular of all lawyers with unpopular clients. By criticizing me for representing a client with different or even repugnant political views, Mr. Schwartz and critics like him have become no different than the physician who refuses to treat a plaintiffs’ lawyer and her family because she brings medical malpractice actions.
Mr. Schwartz and other local critics of my advocacy style specifically misrepresented my interaction with Bernie Sanders. The junior senator from Vermont’s question to me asked for my personal views. When I responded my personal views are irrelevant to a First Amendment analysis, he rose from his seat, voice raised, finger pointing and interrupted me in violation of Senate rules. He was gaveled down and admonished by the Senate President for doing so. He interrupted me.
In my own defense, I am a zealous advocate. I believe zeal, with an expansive understanding of the law as applied to the
facts, is required when representing a client. True Philadelphia Lawyers understand that civility and professionalism
embrace zeal and passion. I have a number of different clubs in my bag. In my judgment, the defense of former President Trump, under the circumstances, required my driver, not my putter. Reasonable minds can differ, but you had to be there.
Mr. Schwartz also lobbed the inflammatory, ill-researched and defamatory claim that I am a “mere mercenary, open for
retaining to the highest bidder” because during the summer, I sued former President Trump. Again, Mr. Schwartz
recklessly disregards the facts with his false equivalency; the first matter (pro bono) involved a declaratory judgement
action in the U. S. District Court for the Eastern District of Pennsylvania seeking injunctive relief regarding the delivery of mail to prevent the disenfranchisement of large numbers of voters whose mail-in ballots may otherwise not have been received in time to be counted in last November’s election. The second matter was an impeachment trial in the U.S. Senate involving constitutional defenses to an article of impeachment. The two matters shared virtually nothing in
common—venue, subject matter, fact pattern or even area of law. The only commonality was that I was successful in
both.
By calling me a mercenary, Mr. Schwartz ignored and disrespected my entire legal career. Taking on socially important
cases in a pro bono capacity has been a hallmark of my career. I have always represented unpopular clients in matters of life and death and global importance. At the age of 27, as a young starving lawyer in Chicago who put himself through law school while waiting tables, I took on the pro bono representation of Jon Stuen-Parker, founder of the National AIDS Brigade. He established needle exchange clinics in cities of states where possession of hypodermic needles was illegal and forced his own arrests to challenge the law. I employed the seldom used necessity defense and successfully won his acquittal at trial. After a series of what came to be known as the Chicago Needle Trials, I eventually helped change the law to decriminalize the possession of needles in Illinois and saved lives by curbing the spread of AIDS.
Mr. Schwartz, wrote in the sentences before he defamed me, that he doesn’t know me. Anyone who did know me and my law firm would be well-aware that pro bono work and answering the call of civic duty are at the core of the culture of our firm. Pro bono and charitable service serve as the food for the soul of my firm.
This country needs to come together to heal. In defending the Constitution before the U.S. Senate, I and the rest of
former President Trump’s legal team helped strengthen the foundational document of our country so that healing can
continue. Criticism and the loss of civility have gone too far. The folks who sit on the left and the ones who sit on the right need to temper the dialogue and move a little bit closer to the middle to solve issues of shared national priority, both short-term and long, such as the pandemic, the economy, social, racial and economic justice or education. Pick one. Our politicians, citizenry and local legal community can accomplish much more united than we can divided. In our own legal community, true Philadelphia Lawyers hell-bent on discharging their duties with integrity and fidelity must continue to focus on serving the profession and the public by promoting justice, professional excellence and respect for the rule of law. We must fight for fair and open access to the courts. The law must be applied evenly to all because Lady Justice, she is blind.
Reprinted with permission from the March 23, 2021 edition of the The Legal Intelligencer © ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected].