And whether there should be consequences for seditious acts. Eric
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.
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[https://static01.nyt.com/images/2021/02/07/us/politics/07dc-impeach-legal/merlin_40775623_86d6b5ce-38e0-4045-a62b-f5b40efd02ef-articleLarge.jpg?quality=75&auto=webp&disable=upscale]
[Charles J. Cooper made his argument two days before the Senate was set to
start former President Donald J. Trump’s impeachment trial.]
Charles J. Cooper made his argument two days before the Senate was set to start
former President Donald J. Trump’s impeachment trial.Credit...Jim Wilson/The
New York Times
[Michael S. Schmidt]<https://www.nytimes.com/by/michael-s-schmidt>
By Michael S. Schmidt<https://www.nytimes.com/by/michael-s-schmidt>
* Feb. 7, 2021
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<https://www.nytimes.com/2021/02/07/us/politics/trump-impeachment.html>,
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<https://www.nytimes.com/2021/01/26/us/politics/republicans-impeachment-trump.html>.
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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<https://www.nytimes.com/2020/05/26/us/politics/house-lawsuit-proxy-voting-coronavirus.html>.
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.
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How the Pandemic Is Coming to Prime Time (or Not)
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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<https://twitter.com/NYTMike>
A version of this article appears in print on Feb. 8, 2021, Section A, Page 13
of the New York edition with the headline: A G.O.P. Legal Ace Rebuts Trump’s
Case. Order Reprints<http://www.nytreprints.com/> | Today’s
Paper<https://www.nytimes.com/section/todayspaper> |
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