Here’s what we know about Trump’s impeachment defence strategy

The first president to be impeached twice is facing a very different challenge his second time around

The build-up to Donald Trump’s second impeachment trial has not gone well for the former president. Aside from losing several members of his legal team, he also faces the prospect that former die-hard supporters who invaded the US Capitol on 6 January may testify against him themselves.

So what kind of defence is he planning?

One critical thing we do know: Mr Trump himself does not intend to testify. His team turned down a request to do so from the Democratic impeachment managers, with spokesperson Jason Miller saying the former president would not participate in “an unconstitutional proceeding”.

The response from the head of the House impeachment team, congressman and constitutional lawyer Jamie Raskin, was damning: “His immediate refusal to testify speaks volumes and plainly establishes an adverse inference supporting his guilt.” 

It remains unclear whether the Democrats plan to call witnesses at all given that lawmakers themselves were the targets of the Trump supporters who stormed their workplace a month ago. It now seems likely the trial may revolve largely around video footage, social media posts and statements from Mr Trump and his followers.

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One of Mr Trump's lawyers, Bruce Castor, has now announced that he intends to show video of Democrats apparently cheering on Black Lives Matter protesters during the summer of 2020 as demonstrations turned violent across the US. He says he is not claiming that Democrats incited rioters and looters, but that a double standard is being applied.

On the legal front, the Trump team has focused on trying to discredit the trial on procedural grounds, responding to the House impeachment managers’ detailed initial brief with a typo-ridden 16-page one of their own that was ridiculed by many legal experts.

It repeatedly stresses two points in particular: that Mr Trump supposedly cannot be tried and convicted by the Senate as he is no longer president, and that where he made false statements about supposed election fraud and exhorted supporters to take their anger to the US Capitol, he was simply expressing his first amendment rights.

The constitutional provision requires that a person actually hold office to be impeached. Since the 45th President is no longer ‘president’, the clause ‘shall be removed from Office on Impeachment for...’ is impossible for the Senate to accomplish, and thus ... runs patently contrary to the plain language of the Constitution.”

The day before the trial began, the Trump team sought to have the charges dismissed on this basis, calling the impeachment “political theatre” and making the constitutional argument once again.

However, legal scholars have been debating this point since the beginning of the impeachment process, as it was always highly unlikely that the House and Senate could complete the process between the 6 January insurrection and the 20 January Biden inauguration.

While there are some who claim that the constitution’s provisions on impeachment only apply to current officeholders, most experts have concluded that it makes no sense to exclude former presidents from impeachment – partly because it would give carte blanche to those nearing the end of their term to behave as they wished, partly because the Senate has tried former officials before, and partly because one of the penalties spelled out in the constitution is disqualification from holding office again – which professor Stephen I. Vladeck argues applies by definition to those who no longer hold it.

In any case, the current Senate has already rejected a motion to declare the current impeachment unconstitutional. Brought by Kentucky Republican Rand Paul, it was defeated when five Republicans crossed the floor to vote with the Democrats – auguring ill for the chances of a two-thirds majority to convict.

As for the president’s free speech defence, the legal prospects look just as dicey. Just last week, 144 lawyers and constitutional scholars co-signed a letter dismissing the idea that First Amendment protections have any bearing on whether Mr Trump can be impeached – and concluding that “the president’s speech and conduct around January 6 constitute unprotected incitement”.