The craziest thing about Donald Trump’s impeachment defence is that it will probably work

He was the president. He is no longer the president.

The words he delivered on January 6 2021 did not incite hundreds of his supporters to storm the US Capitol. Regardless, whatever he said was defended by the First Amendment of the constitution he swore to defend, when he placed his hand on a bible given to him by his mother, and took the oath of office in 2017.

And putting aside the issue of whether or not the election was rigged - we know of course, it was not - he had legitimate concerns, and therefore the right to “express his belief that the election results were suspect”.

That, in a nutshell, is the legal strategy set out by lawyers for Donald Trump, as he prepares for the second time to defend himself against impeachment.

On Tuesday, lawyers for Democrats in the House of Representatives made public an 80-page document, making their case the former president “incited an insurrection”. He has already been impeached on that charge in the House, the only president to ever be impeached twice.

Now, he must defend himself again in the Senate, where no president has yet been found guilty. (Along with Trump, Bill Clinton and Andrew Johnson, the nation’s 17th president, were the others impeached in the lower chamber of Congress.)

“President Trump's responsibility for the events of January 6 is unmistakable,” said the House Democrats. “President Trump's effort to extend his grip on power by fomenting violence against Congress was a profound violation of the oath he swore. If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offence, it is hard to imagine what would be.”

Trump and his legal team were having none of it. It had been reported recently he had struggled to find high calibre lawyers to defend him. One of his planned attorneys, Butch Bowers, quit, reportedly after Trump refused the $1m fee he wanted for himself and some researchers.

Trump has now settled on two lawyers to represent him - David Schoen and Bruce L Castor Jr, the former district attorney of Montgomery County, Pennsylvania.

Schoen went to meet with the disgraced financier Jeffery Epstein shortly before his killed himself.

Castor is remembered in legal circles for declining to bring charges against Bill Cosby, over allegations he drugged and molested a girl in 2004.

The 14-page document released by the president’s lawyers might feel thin by comparison to that of the Democrats. It argues that because he is no longer the president, impeachment is not an avenue for the Senate to pursue.

“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.”

It also rejects the claim Trump’s words to the crowd - “If you don’t fight like hell you’re not going to have a country anymore” - were an incitement to walk down the National Mall and storm the legislative building, as a joint Session of Congress was set to affirm the electoral college votes of each of the 50 states, and in doing so clear the way for Joe Biden to become president.

“It was clearly about the need to fight for election security in general, as evidenced by the recording of the speech,” they said.

“It’s denied that President Trump intended to interfere with the counting of electoral votes.”

If the defence is limited to just 14 pages it may be because there is not a lot more to say. More pertinently, it is because they know if does not really matter they say.

In the aftermath of the January 6 riot, in which five people lost their lives, there was for the briefest moment, a suggestion Republicans may abandon Trump as being too toxic. Previously acquiescent voices such as Mitch McConnell and Kevin McCarthy blamed Trump for what happened, and the former even let it be known he welcomed his impeachment by the House.

Trump’s longer-term future may still be unclear. Yet, it appears in the short term, the party has decided it it needs him, or at least the votes of his supporters.

Last week, McCarthy flow to Florida for a photo opportunity with Trump, and released a statement saying the former president would be involved in GOP efforts to regain the House and the Senate in 2022.

Meanwhile, in the Senate, 45 Republicans, spearheaded by Kentucky’s Rand Paul, tried to have the chamber declare the trial unconstitutional and be thrown out. They failed, but the fact only five Republicans were willing to allow the trial to proceed, suggests Democrats have no hope of mustering the 67 votes needed to convict him.

Donald Trump’s defence may appears wild and scattershot. But it will likely be enough to ensure he is not convicted.

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