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Trump legal defense will argue impeachment trial is unconstitutional

Donald Trump's legal defense will focus entirely on process, Axios has learned.

Why it matters: The attorneys representing the former president know it's fruitless to continue defending his actions preceding the Capitol attack. Instead, they'll say none of that matters because the trial itself is unconstitutional — an argument many Republican senators are ready to embrace.


  • The House impeachment managers homed in Thursday on how Trump repeatedly encouraged violence among his supporters and how it affected not just lawmakers but the largely minority support staff who care for and protect them in the Capitol.

What we're hearing: Trump's lawyers will focus on four key points about the impeachment:

  1. It’s unconstitutional. They'll say removal is the requirement for impeachment, and Democrats cannot satisfy that requirement for someone who's already out of office.
  2. No due process. It was "impeachment by reflex," and the article of impeachment was hastily drafted before a thorough investigation took place.
  3. Violates First Amendment. President Trump's speech at the pre-riot rally doesn't meet "the Brandenburg test" — referring to Brandenberg v. Ohio — stating that any violence advocated by a speaker must be intended, likely and imminent.
  4. Won’t unify the country. The entire trial goes against President Biden's core campaign promise, and Democrats are further exacerbating the divisions in the country.

Beyond words: Similar to the prosecution, Trump's lawyers also plan to rely heavily on video, though theirs will be far less graphic and emotionally triggering.

  • They plan to show video of the certification process surrounding the 2016 election, when a handful of Democrats — including Rep. Jamie Raskin, the lead impeachment manager — objected to the Electoral College results making Trump president.
  • Of note: Then-Vice President Biden definitively told the Democratic objectors: "It is over."

The defense also will show video of Trump telling his supporters at the Jan. 6 "Stop the Steal" rally to "peacefully and patriotically" make their way to the Capitol — something they plan to reiterate throughout their presentation.

Alternate timeline: In addition, Trump's team will point to a series of facts showing the pre-riot rally had been planned, something House managers did for different reasons.

  • They'll explain how, three days earlier, the Pentagon asked Capitol Police if it needed help from the National Guard but they declined. They also offered FBI agents as the mob breached the Capitol yet the police ostensibly turned them down.
  • They'll point to how pipe bombs were placed before the speech.
  • This evidence, the defense will say, shows Trump's words at the rally did not directly incite the attack.

What they're saying: "The one thing the House impeachment managers did add into the argument yesterday was that groups of people were preparing for weeks to assault the Capitol, which I think hurts their argument," Sen. Roy Blunt (R-Mo.) told reporters Thursday.

  • "Once again, the issue for most of us is are you asking us to do something that we simply don't have the capability of doing because the Constitution does not give us that tool with regard to a private citizen," Sen. Mike Rounds (R-S.D.) told reporters.

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