Rudy, For the Defense

Most lawyers wouldn’t find themselves in this position. But then, most lawyers aren’t Rudy Giuliani, having two key differences: First, they’re competent. Second, they insist on getting paid for their services. To be fair, Rudy hasn’t done too poorly over the years, bootstrapping his credibility from having been United States Attorney for the Southern District of New York and then America’s Mayor, even if New Yorkers didn’t like him all that much, to making decent money by bringing business into the firm that other, more competent, lawyers would then work.

But having gone all in on his failed gig as Trump’s beleaguered election fraud lawyer, informing United States District Judge Martin Bramm that only “normal scrutiny” applied, he now says he’s back for a Mulligan in defense of Trump in the trial of Impeachment 2.0.

Rudy’s defense is bold. It’s clear. It will warm the hearts of those who believe, passionately believe, that the election was stolen from their fearless leader.

“They basically claimed that anytime [Trump] says voter fraud, voter fraud — or I do, or anybody else — we’re inciting to violence; that those words are fighting words because it’s totally untrue,” he said. “Well, if you can prove that it’s true, or at least true enough so it’s a legitimate viewpoint, then they are no longer fighting words.”

That’s basically not what anyone is claiming, but rather the push to march from the Ellipse to the Capitol and “fight like hell,” or as a co-conspirator exclaimed, “trial by combat.”

“If they decide to bring it to a trial, he should move to dismiss the impeachment as entirely illegal. That it was the only impeachment ever done in what, two days, three days,” Giuliani told ABC News. “We would say to the court, ‘You are now permitting in the future, basically in two days, the Congress can just impeach on anything they want to.”

The Constitution neither provides a process that must be followed by the House of Representatives nor a time period between the introduction of Articles of Impeachment and a vote. There is no such thing as a “motion to dismiss,” and Congress can “just impeach on anything they want to” as high crimes and misdemeanors covers whatever Congress decides it covers. As has been explained ad nauseam, impeachment is political, not legal. He can save the legal arguments for court, should Trump be taken into custody on an indictment for 18 U.S. Code § 2383 at 12:01 pm on January 20th.

But Rudy is primed for this accusation.

“Basically, if [incitement] is going to happen, it’s got to happen right away,” he said. “You’d have to have people running out, you’d have to have people running out of that frozen speech, right up to the Capitol. And that’s basically, incitement,” Giuliani said.

And that’s, basically, what happened.

That the House held no hearings is unsurprising. There are only two purposes to holding hearings, to allow show ponies to grandstand for the cameras and to determine disputed facts. There are no facts in dispute here. Trump’s speech was recorded and the consequence, beyond being recorded, was personally observed by Congress. What to make of the facts was the only issue, and that’s a matter of debate and determination. That it took a few days is surprising, not that it was too short but that it was so long, somewhat sucking the wind out of concerns of exigency. That Nancy Pelosi has yet to march the Article of Impeachment across the rotunda suggests that there is no rush here, which is a curious message for America.

But to defense lawyers with any modicum of experience, unlike Rudy, there are arguments against impeachment. For one thing, Trump has an uncanny ability to speak in such inherently contradictory patterns as to send directly conflicting messages in the same sentence, the same speech. Here, he did say “peacefully,” just as he exhorted the crowd invited for their lack of impulse control to march down to the Capitol to “fight like hell” or lose the country.

Throwing in the occasional “peacefully” doesn’t change the clear message that was sent. If he’s a smart enough guy, he knows this. If he’s a dolt, maybe he doesn’t. What he intended is the question. That he did nothing serious to stop it? That he and Rudy reportedly watched it on TV and like it? That his calls to stop the insurrection that day were more directed to fueling outrage than quelling it? These are not going to help Trump in disputing that he meant nothing more than a peaceful show of force.

Still, it’s enough of a conceptual ledge to hang reasonable doubt on, provided one is prepared to concede that Trump lacks the metacognitive depth to realize the natural and obvious consequences of his words. Trump was never the sort of president to speak in coherent sentences, to demonstrate a firm grasp of his rhetoric, regularly shooting off into bizarre tangents as his synapses misfired and orthogonal ideas popped into his head. Remember his asking about ingesting bleach or using light to kill coronavirus? Stable geniuses sometimes have flashes of brilliance that just have to come out.

And then I see the disinfectant, where it knocks it out in one minute. And is there a way we can do something like that, by injection inside or almost a cleaning, because you see it gets in the lungs and it does a tremendous number on the lungs, so it’d be interesting to check that, so that you’re going to have to use medical doctors with, but it sounds interesting to me. So, we’ll see, but the whole concept of the light, the way it kills it in one minute. That’s pretty powerful.

On the other hand, his minions are now defending their ransacking of the Capitol using the Nuremberg defense, that they were “just following orders” of their Commander-in-Chief. Did they misunderstand Trump? Did Trump not appreciate what he was saying when he asked his followers to come to Washington on the free buses, because it was going to be “wild,” and then exhorted them to march to Congress and “fight like hell”?

Trump never said out loud that his acolytes break into the Capitol and hang Mike Pense, kill a cop or steal Nancy Pelosi’s lectern. What purpose Trump believed would be served by his rally otherwise could be to make a show of force, of the mass of followers he could accumulate to cow those Republicans in Congress to bow to his base, as they stood outside the Capitol waving Trump flags, chanting the name of their leader and striking fear in the heart of darkness that they should disavow the Constitution and anoint Trump.

Sure, it was an idiot’s fantasy, but the argument is to distinguish the words of an incoherent dolt from those of a guy who just incited a mob to insurrection. The question is whether Trump cares more about not being impeached or being outed as the fool on the hill? What’s poor Rudy to do, argue to win or praise his fearless leader?

As a criminal defense lawyer, I bet I could beat this case. Not that Trump didn’t intentionally incite the mob. He did. But unlike Rudy, who wants to create reasonable doubt that there was election fraud, I would create reasonable doubt that Trump has the capacity to grasp the significance of the inflammatory noise that emits from his yap.