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Trump defense attorneys Bruce Castor (left) and Michael van der Veen. Photo: Michael Reynolds/EPA/Bloomberg via Getty Images

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.

Behind the scenes: There is broad agreement among Republicans and Trump’s team to end the impeachment trial as early as possible, given the beating they’re taking from the media and the strength of the Democrats’ presentation.

  • There was discussion among Trump’s team Wednesday night about potentially starting the defense on Thursday, depending on how early the managers concluded their prosecution. But by Thursday morning that idea had been scrapped, sources familiar with the talks tell Axios.

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 post-rally riot 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.

Go deeper

Impeachment trial recap, day 2: House managers air unseen riot footage

Pro-Trump supporters storm the U.S. Capitol following a rally with President Trump on January 6. Photo: Samuel Corum/Getty Images

House impeachment managers began presenting their prosecution of former President Trump on Wednesday, laying out their evidence — including previously unseen Capitol security footage from the Jan. 6 insurrection — before a divided Senate.

The big picture: One by one, managers detailed how Trump laid the groundwork for his supporters to believe "the big lie" — that the election would be stolen — for months leading up to the attack. Rep. Joe Neguse (D-Colo.) called Trump's false claims "the drumbeat being used to inspire, instigate, and ignite them," stressing that the incitement didn't just begin with the president's speech on Jan. 6.

Impeachment trial recap, day 1: Senate votes trial is constitutional

The impeachment trial for former President Trump kicked off in the Senate on Tuesday, beginning with debate over the constitutionality of the House prosecuting a president who has already left office.

The bottom line: After four hours of arguments by each side, the Senate affirmed by a vote of 56-44 that it is constitutional to try a former president.

Updated Feb 12, 2021 - Politics & Policy

The daily highlights from Trump's 2nd Senate impeachment trial

Trucks with LED screens displaying anti-Trump messages in front of the Capitol. Photo: Kent Nishimura / Los Angeles Times via Getty Images

President Trump was acquitted by the Senate on Feb. 13 in his second impeachment trial, in which he was faced a single charge from the House of Representatives for inciting the Jan. 6 Capitol insurrection.

The big picture: At five days, it was the fastest impeachment trial of a U.S. president and ended with the most bipartisan conviction vote in history. Still, the seven Republicans who joined all Democrats were not enough to reach the two-thirds majority necessary for conviction.