David Schoen provided the most Jewish moment of the second impeachment trial of former President Donald J. Trump, though at the time he was too engrossed in the task at hand to recognize or appreciate its impact.
The attorney from Atlanta was telling a jury comprised of 100 senators that the House had denied Trump due process in a “rushed” impeachment, that Trump’s remarks to a Jan. 6 rally constituted speech protected under the First Amendment, and that the Constitution did not give the Senate the right to try a president no longer in office.
Several times during his opening statement on Feb. 9, Schoen paused to sip from a water bottle. Each time, Schoen — an Orthodox Jew who was not wearing his kippah — placed a hand on his head and quickly recited a prayer said by the religiously observant when drinking or eating. Across social media, Jews discussed religious practices, while non-Jews expressed curiosity, some, ignorantly, finding humor in the gesture.
“I was not at all aware at the time that it would be an issue at all, but I soon learned how widespread the discussion was,” Schoen told the AJT. “I was really heartened to hear from Jews and Jewish leaders from around the world that the kippah and Shabbat issue inspired discussions.” (Schoen wore his kippah at several points during the trial.)
“I was very moved by emails I received from people who had struggled with finding the right accommodation in their own lives between wanting to wear a kippah and workplace concerns. I cannot describe in my own words the impact some of the emails have had on me. It was never my intention to make any sort of statement, and I am not learned enough to inspire in any other way, but if this experience and the discussion that flowed from it had any positive impact in any way, then I am really honored to have been a part of that, even if unwittingly.”
The case that brought Schoen to the Senate floor was based on events of Jan. 6. That morning, Trump had told thousands gathered at The Ellipse to “fight like hell” and to protest “peacefully and patriotically” in support of his claims that he won the presidential election. The mob that marched to the Capitol clashed with police outside and inside, ransacked the offices and desks of members of the House and Senate, and sent the vice president and members of both chambers into hiding. Ratification of the Electoral College vote confirming Joe Biden as 46th president of the United States was interrupted. Five people, including a Capitol Police officer, died in the riot. Two officers later committed suicide. Trump was impeached Jan. 13 by the House by a vote of 232-197.
Senate leaders initially granted a request by Schoen, who worships at Congregation Beth Jacob and Ohr HaTorah, to pause the trial during Shabbat. A few days later, Schoen withdrew that request, writing to the leadership, “I very much appreciate your decision; but I remained concerned about the delay in the proceedings in a process that I recognize is important to bring to a conclusion for all involved and for the country.”
Schoen has argued cases in many courtrooms, but this was different. “It was a very interesting experience and unlike any other I have had. I found the setting really awe-inspiring and much more intimate than I had envisioned. I felt that it was a tremendous honor to address the whole Senate. It was really nothing like a trial in any way. From a speaker’s perspective, it was much easier than at a trial in the sense that there were no interruptions and no concern about what answer a question to a witness might elicit. It was more like giving a speech,” he said.
The five-day trial ended on Feb. 13 with the anticipated result: Acquittal, as a majority — but not the two-thirds required by the Constitution — voted to convict Trump. The vote was 57 to convict and 43 to acquit, “so in this political theater, that was good enough and at the end of the day, this was the most important factor,” Schoen said.
Democrat Jon Ossoff, who had been sworn in the month before, voted to convict. The Jewish senator from Georgia later issued a statement that said, “Trump attempted to seize the Presidency despite electoral defeat. He intimidated election officials, provoked a violent assault on the Capitol, and left Congress and the Vice President to the mob. His disgrace is total and his apologists in Congress are marked by history.”
Schoen said that Trump had called weeks earlier, asking him to lead a defense team. Five other attorneys, most from South Carolina, backed out a week before the trial. “When they parted ways, President Trump asked me just to handle the case myself and I declined, recognizing immediately that it would have been far too big and serious an undertaking for me, especially with the week left to prepare,” Schoen said. He describes himself as “a solo practitioner, with no assistants or office staff, with a small-time practice based in Montgomery, Ala.” Two attorneys from Philadelphia, along with their aides, came on board. Schoen acknowledged tensions within the trio, but said his concern was on their client.
“I spoke with President Trump a few times a day before and throughout the trial and I have to say that he was extraordinarily gracious and supportive in each conversation. From the evening he called personally to ask me if I would consider representing him, through the end of the trial, he made me feel as if it were an honor for him to speak to me, rather than for me to be hearing from a president of the United States. During the trial he made me feel great with his words of gratitude and appreciation after each of my presentations, and he constantly emphasized the confidence he had placed in me. That is a great thing to hear from any client, especially in the middle of a high stakes proceeding,” Schoen said.
During closing arguments Friday, Feb. 12, Schoen presented a video montage of Democrats and media using the word “fight.” He told House prosecution team, “Please stop the hypocrisy,” accusing them of presenting “manipulated evidence and selectively edited footage” that took Trump’s words out of context.
While he welcomed the support of Trump’s supporters and Republican senators, “I think the whole process was bad for the country and never should have happened,” Schoen said. “I say that for many reasons, not the least of which is that all recognize that we simply still do not have the facts surrounding what happened at the Capitol on Jan. 6, what level of pre-planning there was, who was involved, what was their agenda, etc. I don’t believe any fair-minded American believes there should ever be a trial in this country in which life or liberty is at stake when all acknowledge, as here, that we just don’t have all the relevant facts.”
Schoen left the Senate mid-afternoon on Friday, a few hours before Shabbat, walking with one of his sons from the Trump International Hotel to “a great shul in D.C.” and to visit family nearby in Maryland, putting in 10 to 12 miles, all told. “Only one son made the trip with me, as the other kids had school commitments, but one of the most meaningful aspects of this experience is that we approached the case as a family,” he said.
“My wife and each of our children had an important role in formulating the defense theories and in gathering materials to support it. This family experience drove my work from start to finish and anything good that I did in my presentation was prompted by an idea or material from one or more family members as we sat and discussed the constitutional issues involved and the approach to make them understandable and impactful.”
Political divisions over the trial were evident in reaction from others in Atlanta’s Jewish community.
Ellen Rafshoon, chair of the history department at Georgia Gwinnett College, harkened back to 1974 and President Richard Nixon’s resignation before the House could vote on three articles of impeachment. “After Watergate, historians concluded that the ‘system worked,’” said Rafshoon, whose expertise is American history. But that would not be the case in 2021, she said.
“First, no force could convince Trump to resign, despite the enormity of his crimes: refusing to transfer power and instigating the violent attack on Congress. Trump was also incapable of acknowledging wrongdoing; he even denigrated his vice president for abiding the Constitution on Jan. 6,” she said.
“Second, the institutions that rid America of Nixon back in 1974 were weak in 2020. The right-wing media fomented the ‘stolen election’ myth and cheered the Capitol riot. Law enforcement agencies were compromised or hollowed out by Trump. Most significantly, a majority of Republican senators voted to acquit Trump, even though [minority] leader Mitch McConnell acknowledged he was responsible for the insurrection.”
Betsy Kramer, who is active in the Republican Jewish Coalition and the Fulton County Republican Party, saw events otherwise. “The process that we just went through was a terrible exercise in politics. The hate that I saw prior to this was terrible and only confirmed to me that the Democrats and some Republicans want to try and do anything to ruin President Trump’s legacy as a great president. The Democrats with Nancy Pelosi in charge brought forth an unconstitutional impeachment of a man who had already was removed by a peaceful transition to the next president. When the [Supreme Court] chief justice didn’t preside over the impeachment, just further confirmed to me that this was a kangaroo court,” Kramer said.