Breaking With G.O.P., Top Conservative Lawyer
Says Trump Can Stand Trial
Charles J. Cooper, a stalwart of the conservative
legal establishment, said that Republicans were wrong to assert that it is
unconstitutional for a former president to be tried for impeachable offenses.
Michael S.
Schmidt
By Michael
S. Schmidt
Feb. 7,
2021, 6:13 p.m. ET
One of
Washington’s leading conservative constitutional lawyers publicly broke on
Sunday with the main Republican argument against convicting former President
Donald J. Trump in his impeachment trial, asserting that an ex-president can
indeed be tried for high crimes and misdemeanors.
In an opinion piece posted on The Wall Street Journal’s website, https://www.wsj.com/articles/the-constitution-doesnt-bar-trumps-impeachment-trial-11612724124?mod=opinion_lead_pos5 the lawyer, Charles J. Cooper, who is closely allied with top Republicans in Congress, dismissed as illogical the claim that it is unconstitutional to hold an impeachment trial for a former president. The piece came two days before the Senate was set to start the proceeding, in which Mr. Trump is charged with “incitement of insurrection” in connection with the deadly assault on the Capitol by his supporters on Jan. 6.
Since the
rampage, Republicans have made little effort to excuse Mr. Trump’s conduct, but
have coalesced behind the legal argument about constitutionality as their
rationale for why he should not be tried, much less convicted. Their theory is
that because the Constitution’s penalty for an impeachment conviction is
removal from office, it was never intended to apply to a former president, who
is no longer in office.
Many legal
scholars disagree, and the Senate has previously held an impeachment trial of a
former official — though never a former president. But 45 Republican senators,
including Mitch McConnell of Kentucky, the minority leader who is said to
believe that Mr. Trump committed impeachable offenses, voted last month to
dismiss the trial as unconstitutional on those grounds.
Mr. Cooper
said they were misreading the Constitution.
“The
provision cuts against their interpretation,” he wrote. He argued that because
the Constitution allows the Senate to bar officials convicted of impeachable
offenses from holding public office again in the future, “it defies logic to
suggest that the Senate is prohibited from trying and convicting former
officeholders.”
Mr.
Cooper’s decision to take on the argument was particularly significant because
of his standing in conservative legal circles. He was a close confidant and
adviser to Senate Republicans, like Ted Cruz of Texas when he ran for
president, and represented House Republicans — including the minority leader,
Representative Kevin McCarthy of California — in a lawsuit against Speaker
Nancy Pelosi. He is also the lawyer for conservative stalwarts like John R.
Bolton and Jeff Sessions, and over his career defended California’s same-sex marriage
ban and had been a top outside lawyer for the National Rifle Association.
But Mr.
Cooper, who is said to be dismayed by the unwillingness of House and Senate
Republicans to hold Mr. Trump accountable, took on the main claim made by his
own confidants and clients, offering a series of scholarly and technical
arguments for why the Constitution allows for a former president to stand
trial.
It was
unclear whether Mr. Cooper’s opinion would have any influence on the outcome of
the trial. It could provide cover to Republican senators open to convicting Mr.
Trump who were caught off guard by last month’s vote, forced by Senator Rand
Paul of Kentucky, to effectively dismiss the case as unconstitutional. Some
Republicans have since said they did not necessarily mean to signal that they
were opposed to hearing the case, or had made up their minds about Mr. Trump’s
guilt.
Seventeen
Republicans would have to join with all 50 Democrats to reach the two-thirds
threshold necessary to convict Mr. Trump — something that appears to be
exceedingly unlikely.
But Mr.
Cooper seemed to be working to change minds. He wrote in his opinion piece that
in the short time since the vote, legal experts’ understanding of the issue had
evolved and “exposed the serious weakness of Mr. Paul’s analysis.”
“The
senators who supported Mr. Paul’s motion,” he wrote, “should reconsider their
view and judge the former president’s misconduct on the merits.”
The
question of constitutionality could come to a head quickly when the trial opens
on Tuesday. Though Senate leaders were still debating the precise structure of
the trial, prosecutors and Mr. Trump’s defense team were preparing for the
possibility that Mr. Paul or another senator could force a second vote on the
question on the opening day, before either side gets into their full
presentations.
Mr. Cooper
has a deep and long history in the conservative legal movement. He grew up in
Alabama, and despite not attending an Ivy League law school, landed a clerkship
for Justice William H. Rehnquist in 1978 before he became the chief justice,
and at a time when Justice Rehnquist was considered the most conservative
member of the court.
Mr. Cooper
went on to become the head of the Justice Department’s Office of Legal Counsel
during the Reagan administration, writing several highly conservative and
controversial interpretations of the law, including one about whether employers
could decline to hire someone who may have AIDS.
As a
private lawyer, he has defended issues like school prayer and was an active
member in the Federalist Society. In 2010, when the Republican National Lawyers
Association named him the Republican lawyer of the year, there were three
speakers for Mr. Cooper: Mr. Bolton; the head of the N.R.A., Wayne LaPierre;
and Ed Meese, an attorney general under Ronald Reagan who was considered among
the most conservative in the department’s history.
In the
early days of the Trump administration, Mr. Cooper — who is longtime friends
with Mr. Sessions — was considered to be the solicitor general. But Mr. Cooper
remained in private practice, becoming the lawyer for Mr. Sessions as he was
enmeshed in controversy related to the Russia investigation. In the second half
of the Trump presidency, Mr. Cooper represented Mr. Bolton and his deputy,
Charles Kupperman, in the first impeachment trial of Mr. Trump.
Mr. Cooper
has continued to represent Mr. Bolton as the Justice Department has sued him to
recoup money he made from a damning book he published about Mr. Trump.
Nicholas
Fandos contributed reporting.
Michael S.
Schmidt is a Washington correspondent covering national security and federal
investigations. He was part of two teams that won Pulitzer Prizes in 2018 — one
for reporting on workplace sexual harassment and the other for coverage of
President Trump and his campaign’s ties to Russia. @NYTMike
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