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Inside the Trump legal team trying to stop impeachment before it starts

Rudy Giuliani. | Alex Wong/Getty Images

White House

The president has a technically nonexistent yet omnipresent force that has been critical in stymying Democrats’ attempts to build their case for removing Trump from office.

Donald Trump’s lawyers insist they don’t need to form an impeachment defense team.

Yet here’s what they have: At least 30 White House and Justice Department attorneys who have worked on related issues. Several personal lawyers for the president dealing with the subject. A lurking presence at Capitol Hill impeachment-focused hearings. Aggressive legal briefs and countersuits foiling efforts to gather fuel for potential proceedings. Near-daily media appearances discussing the topic.

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This technically nonexistent yet omnipresent force has been critical in stymying Democrats’ attempts to build their case for removing Trump from office. Trump’s lawyers have helped block testimony from former White House counsel Don McGahn — a key player in the most potentially damning stories from Robert Mueller’s report — fought lawmakers and prosecutors trying to see the president’s personal tax returns and protected the former special counsel’s most sensitive secrets. They’ve also advised ex-Trump staffers like Corey Lewandowski and Hope Hicks as they faced grillings from congressional Democrats.

That the president’s representatives don’t want to call their work what it is — preventing Trump’s potential impeachment — is no surprise. Any recognition that they’ve taken such an official step would be a giant red flag that they think things are more serious than they are. Still, the Trump lawyers’ combined mission effectively is to stop impeachment before it starts.

“No one is prepping for anything like that,” said Trump attorney Jay Sekulow, the longest-serving member of the Trump personal legal team, when asked to describe the president’s legal strategy for impeachment. “We’ve got very capable lawyers handling the issues that are currently pending and we’ll work on those as appropriate.”

Impeachment has actually long been on the minds of the president and his lawyers.

Back in May 2018, POLITICO reported that Trump’s attorneys had calculated that Mueller would not pursue a criminal indictment against a sitting president. That freed them up to launch a public relations blitz meant to undermine the special counsel and cripple any impeachment-fueling evidence he turned up.

That’s where we are now.

To start the new year, Trump brought in Pat Cipollone to replace McGahn as White House counsel, a position that makes him the public figurehead and final say on all impeachment-related matters for the powerful office. Cipollone in turn hired Michael Purpura, a former top aide to President George W. Bush, to lead a team that has since grown to nearly 20 attorneys who have repeatedly jostled with oversight-focused House Democrats to limit what they can get from potential witnesses.

Trump is also getting air cover from the Justice Department.

The department’s civil division — run by Jody Hunt, a former chief of staff for ousted Attorney General Jeff Sessions — is defending the president in several impeachment-related lawsuits. In one key case that will be argued early next month before a federal judge in Washington D.C., Hunt’s team has argued that since Congress isn’t in a formal impeachment process, it shouldn’t be given access to the secret testimony and evidence Mueller collected in front of the grand jury.

DOJ lawyers are also slated to appear at a separate hearing on Halloween challenging Democrats’ attempts to enforce a subpoena for McGahn’s testimony.

Several private attorneys have Trump’s back, too.

William Consovoy, a Northern Virginia-based former law clerk for Supreme Court Justice Clarence Thomas, has taken a lead role in several lawsuits to protect the release of the president’s tax returns. Consovoy has one case challenging House Ways and Means Committee Chairman Richard Neal’s attempts to secure the documents. And last Thursday, he filed suit against Manhattan’s district attorney, arguing that it’s unconstitutional for a local prosecutor to be investigating a sitting president over hush-money payments made during the 2016 campaign.

Then there’s the PR push.

The messaging campaign most prominently features Trump stalwart Rudy Giuliani. The former New York mayor makes frequent and combative appearances on cable news while dishing out hyperbolic social media posts. “All the witch-hunt committees should be challenged in court,” he recently wrote on Twitter.

In the wake of the latest possible impeachment-fueling Trump scandal — a buried whistleblower complaint about the president’s communications with a foreign leader — it was Giuliani who went on CNN Thursday night to redirect the public’s attention, sparking headlines with a pugnacious rant about Ukraine and Joe Biden.

Central to the entire legal effort is Sekulow, who has represented the president since mid-2017.

Sekulow routinely uses his own daily radio program to critique Trump’s investigators. Sekulow recently dedicated an entire show to mocking and trashing House Judiciary Chairman Jerry Nadler’s efforts to collect information for potential impeachment proceedings. He took particular issue with a resolution the Democrat had circulated laying out the rules for the committee’s impeachment probe, latching on to a clause that allows Trump’s lawyers to respond in writing to evidence collected in both public and private settings.

“I guess that’s us, not the White House counsel, right? We’re the president’s counsel,” Sekulow asked live on air while joking with his co-hosts about whether Nadler was serious with the offer.

Jay Sekulow

Trump attorney Jay Sekulow. | Rick Diamond/Getty Images for GMA

In past House impeachment probes for Bill Clinton and Richard Nixon, the Judiciary panel gave the president’s attorneys wide berth to respond to any charges, including by allowing the cross-examination of witnesses. With their resolution, Nadler’s Democrats didn’t go as far as those historical examples but did seem to be opening the door to lengthy retorts from the president’s attorneys.

“I bet they really want that,” said Jordan Sekulow, the show’s co-host and Jay Sekulow’s son.

“Yeah, I don’t think they do,” his father replied.

Trump’s lawyers aren’t just filing court papers, writing letters to Congress and throttling their opponents in public. They’re also showing up on Capitol Hill.

Last week, Purpura, White House deputy counsel Patrick Philbin and Curtis Gannon, a top DOJ attorney in the Office of Legal Counsel, had front-row seats during the Lewandowski hearing. They whispered occasionally to the former Trump campaign manager’s attorney, even though his client never worked in the White House. During breaks, they joined Lewandowski and Republican lawmakers in the committee’s GOP antechamber.

“They were observers,” said Georgia Republican Rep. Doug Collins, the Judiciary Committee’s ranking member, when asked about the Trump lawyers who were present during the hearing.

Democrats saw things differently.

“That was a pretty a stunning sight and it may be an indicator of what’s to come in terms of how aggressively they’ll be trying to prevent the American public from having access to the truth,” said Texas Rep. Veronica Escobar, a Democratic Judiciary Committee member.

“Just in terms of the optics, which obviously they don’t care about, they have an iron grip over these witnesses. That’s for sure,” she added.

Several Democrats even see the Trump team’s efforts to guide and influence congressional witnesses as an attempt to stymie Congress’s legitimate oversight authorities.

“It’s called obstruction,” argued Rep. Mary Gay Scanlon, a Pennsylvania Democrat who serves as vice-chair of the House Judiciary Committee.

And it could be used as evidence to support an article of impeachment for contempt of Congress, several Democrats argued.

The Democrats’ frustration over the role that Trump lawyers are playing in the process has boiled over at times.

During Hicks’ closed-door deposition in June, Nadler opened by saying DOJ attorneys — in this case Gannon — aren’t normally allowed to sit in for an interview when the employee didn’t work for the department.

“However, in the interest of accommodating both the witness and the White House an exception is being made in this one case, and the department’s presence is permitted,” the New York Democrat said.

But Nadler showed his annoyance a short while later after the Trump lawyers blocked Hicks from responding when she was asked to explain whether Lewandowski had been hired to work in the White House.

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“It’s a matter of public record. Why would you object?” Nadler said.

Purpura, the White House attorney who was also sitting in on the interview, replied that there’s a “longstanding executive branch precedent” that says Hicks can’t be forced to talk about things she worked on as a senior adviser to the president.

“With all due respect, that is absolute nonsense as a matter of law,” Nadler replied.

As they eye next steps on impeachment, Trump’s lawyers do have plenty of precedent to consider.

Over an eight-year term clouded by investigations, Clinton deployed a broad legal defense that included multiple White House lawyers and former Arkansas Democratic Sen. Dale Bumpers. The ex-lawmaker delivered a closing argument during a Senate impeachment trial that concluded with the Democrat’s acquittal. Clinton’s personal attorneys were also deployed to aggressively push back against potential criminal proceedings. One of them, David Kendall, even got to cross-examine independent counsel Kenneth Starr during a nationally-televised Judiciary Committee impeachment hearing.

“It’s a daunting exercise, but let me begin with the simple but powerful truth that nothing in this overkill of investigation amounts to a justification for the impeachment of the president of the United States,” Kendall told the lawmakers as he opened a 30-minute exchange with the president’s chief nemesis.

Nixon didn’t have nearly the support that Clinton did. Several of the Republican president’s top White House attorneys faced criminal charges of their own during the Watergate scandal. And Nixon was also frequently at odds with his Justice Department, angry that they weren’t helping shut down the Watergate investigation. Eventually, he fired the top ranks at the agency in the infamous “Saturday Night Massacre” in an attempt to install leaders who would help him stymie investigators.

Nixon, the only president in U.S. history to resign from office, ultimately leaned on an outside attorney, James St. Clair, to defend him.

”I don’t represent Mr. Nixon personally,” St. Clair told the New York Times. “I represent him in his capacity as president.”

President Andrew Johnson, who was impeached but not convicted over his handling of Reconstruction, survived in office with the backing of a team of lawyers that included former Supreme Court Justice Benjamin Robbins Curtis and Henry Stanbery, who resigned as attorney general to defend Johnson.

By leaning as heavily as he does on White House and DOJ attorneys, Trump has already strayed well beyond the bounds of anything done by his historic predecessors, said Michael Gerhardt, a University of North Carolina law professor who has written books on impeachment.

“There were lots of people whose heads rolled to keep Nixon from dominating the Justice Department. The DOJ in the end was not Nixon’s friend. With this administration, the DOJ is just another part of the White House counsel’s office,” he said.

Gerhardt, who has testified multiple times on impeachment at the request of both Democrats and Republicans, said there’s no good political reason for Trump to officially designate a legal team to handle the issue.

“It’d only be hurtful for them to say we’re scared or anything like that,” he said.

Still, Gerhardt said the Trump legal strategy is obvious.

“His defense in part is to just produce confusion and chaos,” he said. “That’s served him well until now. It’s his way of blowing smoke. And so having different people speaking for him in different ways and at different times, and his own bluster on Twitter and elsewhere, all that together is his defense. It’s designed to keep people off balance.”

A senior Trump administration official argued that there’s no need to designate a formal impeachment team when Democrats themselves are still quibbling over their own game plan.

“Until you are at that level it’s difficult to make decisions about representation,” the senior official said. “[Andrew] Johnson handled it differently than Nixon, who handled it differently than Clinton. But our fundamental problem here is that we have no idea what the House Judiciary Committee is doing and apparently they don’t either.”

William Jeffress, a prominent Washington defense attorney who represented Nixon after his resignation until the president’s death in 1994, said he expects the Trump White House counsel’s office “to be front and center” on impeachment because only it and “not the president’s personal lawyers, can instruct present and former White House officials not to cooperate.”

And for political reasons as much as anything else, Jeffress predicted the White House strategy as it faces Democrats will continue to be “unrelenting stonewall on the legal front.”

“Even though I feel sure Trump and his advisers do not see much likelihood of losing an impeachment vote in the House, and no likelihood of a conviction in the Senate, they will at every opportunity seek to cast the proceeding as an illegitimate effort to overturn the election,” he said, “because Trump gets great political mileage from that argument.”

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