Rudy says he can't be on Trump's impeachment defense because speech at Capitol 'makes him a witness'

Rudy Giuliani has said he will not be on Donald Trump’s legal team for the upcoming Senate impeachment trial – a day after claiming he would be spearheading the president’s defense.

Speaking to ABC News on Sunday night, the former mayor of New York said: ‘Because I gave an earlier speech [at the January 6 Trump rally], I am a witness and therefore unable to participate in court or Senate chamber.’

During the speech, Giuliani had instructed supporters to engage in ‘trial by combat’  moments before they stormed the Capitol – comments which have left him facing his own potential legal troubles. 

Giuliani’s about-turn Sunday came hours after Trump’s campaign spokesperson issued a statement to contradict an earlier claim made by Giuliani on Saturday that he’d be spearheading Trump’s impeachment defense.  

‘President Trump has not yet made a determination as to which lawyer or law firm will represent him for the disgraceful attack on our Constitution and democracy, known as the “impeachment hoax.” We will keep you informed,’ spokesman J. Hogan Gidley tweeted on Sunday.

Gidley’s Twitter feed is one of the few remaining social medial outlets Trump can use to get his message out – though Gidley must be careful not to share a message worded directly from the president, or his account would likely be shut down for aiding ‘ban evasion’. 

Giuliani, who is Trump’s personal attorney, was spotted visiting the White House on Saturday, after the ABC interview. His status in Trump’s eyes remains unclear after the president reportedly refused to pay Giuliani’s $20,000-a-day legal fees in displeasure at his failed efforts to challenge the election results.

It comes as confusion surrounds who will represent Trump at impeachment, with many of the lawyers who defended him in his first Senate trial declining to participate in the second. 

In the interview on Saturday,  Giuliani had claimed of the impeachment defense: ‘I’m involved right now… that’s what I’m working on.’

Giuliani said there are ‘different opinions’ regarding how the president should approach his second impeachment, but said he planned to show that Trump’s claims of election fraud were not incitement by proving in the Senate trial that the fraud claims themselves are true.

‘They basically claimed that anytime [Trump] says voter fraud, voter fraud – or I do, or anybody else – we’re inciting to violence; that those words are fighting words because it’s totally untrue,’ he said. 

‘Well, if you can prove that it’s true, or at least true enough so it’s a legitimate viewpoint, then they are no longer fighting words,’ he added.

Giuliani’s dozens of lawsuits alleging election fraud were all rejected in court, and Trump himself has not yet indicated whether he hopes to turn the Senate impeachment trial into a final public showdown on his unproven election fraud claims. 

The trial will take place after Trump leaves office on Wednesday, and many of the lawyers who might be likely candidates to defend Trump have indicated they are not interested.

Constitutional lawyer Alan Dershowitz, who joined Trump’s team last year and appeared in the Senate chamber, told DailyMail.com: ‘I will be defending the First Amendment in the court of public opinion, not in the Senate.’ He didn’t say whether Trump had asked him to serve in his defense.

White House counsel Pat Cipollone, who helped lead the defense effort during the impeachment over Ukraine, is also not expected to participate in the latest effort, according to one person familiar with the matter. Cipollone will leave his post on January 20, when Joe Biden becomes president.

Jay Sekulow, another personal lawyer for Trump who played a role during the first impeachment, also is not expected to be involved.

Now, Trump is considering hiring a law professor who spoke at his January 6 rally, according to two people familiar with the matter.

John Eastman, who joined Trump’s personal lawyer Rudy Giuliani on stage at the rally, is being considered for a role on Trump’s defense team, the people said.

Eastman, 60, who made unsubstantiated claims of election fraud at the rally, would neither confirm nor deny whether he will represent Trump, citing attorney-client privilege.

Asked whether he would be willing, Eastman said: ‘If the President of the United States asked me to consider helping him, I would certainly give it consideration.’

The White House did not immediately respond to a request for comment on Eastman and has declined to comment on Giuliani. 

Last week, Trump expressed disappointment with some of Giuliani’s legal moves in challenging the election results, and ordered aids not to pay his fees of $20,000 a day in the failed push, two officials told the Washington Post.

The officials said the president is also demanding to personally approve all expenses incurred by Giuliani in his multi-state legal campaign to prove election fraud, which quickly fizzled in court. 

It was a sign Trump’s relationship with Giuliani may be fracturing – although the president’s lawyer is one of the few who have vigorously defended him in public, insisting that Trump’s actions were not incitement.

Giuliani has been a key legal advisor to Trump in his election challenge, after leading a leading a personal crusade to unearth potential dirt on Joe Biden and his son Hunter in Ukraine.

The former New York City mayor’s legal charge challenging the election took bizarre turns at times, such as the notorious press conference held in the parking lot of Four Seasons Total Landscaping outside Philadelphia.

It led to speculation that the location had been mistakenly booked in the belief that it was the upscale Four Seasons Hotel Philadelphia in Center City, although the incident was never fully explained.

At another press conference, at the Republican National Committee in Washington DC, an agitated and sweaty Giuliani appeared to be melting on live TV, with some kind of hair dye dripping down the side of his face.

Trump, who is known to fixate on the image of his aides, insisting they project a polished veneer, was likely unhappy with those debacles and the mockery they drew.

As well, Giuliani now faces his own potential legal exposure for telling supporters to engage in ‘trial by combat’ in his remarks at a January 6 rally, following which Trump’s supporters stormed the U.S. Capitol.  

Defending his rally remarks, Giuliani has said that he was quoting from the HBO series Game Of Thrones, which he inexplicably described as a ‘famous documentary about fictitious medieval England.’

‘I was referencing the kind of trial that took place for Tyrion,’ Giuliani told The Hill, referring to a character from the series. 

‘When Tyrion, who is a very small man, is accused of murder. He didn’t commit murder, he can’t defend himself, and he hires a champion to defend him,’ he added. 

Giuliani’s rally comments appear in evidence for impeachment, after a House Judiciary Committee report cited them before the House voted to impeach Trump Wednesday on a single count of ‘incitement to insurrection.’

Giuliani is also facing possible expulsion from the New York State Bar Association over the incendiary remarks. 

Removal from the bar association, a voluntary membership organization dating to 1876, is not the same as being disbarred and banned from practicing law. That can only be done by the courts.

It’s unclear whether Giuliani’s rally remarks would raise concerns for Trump about including him on his impeachment legal team.