WASHINGTON — Senate Republicans revealed Tuesday they are unlikely to convict former President Donald Trump for inciting the Jan. 6 insurrection on the Capitol, as a majority of the conference supported a procedural gambit to dismiss the trial.
After senators were sworn in Tuesday for the impeachment trial that will start in two weeks, Sen. Rand Paul raised a constitutional point of order against the proceedings. The Constitution does not provide Congress the power to impeach and try a former president, Paul argued.
“Private citizens don’t get impeached. Impeachment is full removal from office, and the accused here has already left office,” the Kentucky Republican said in floor remarks before the vote. “Hyperpartisan Democrats are about to drag our great country down into the gutter of rancor and vitriol, the likes of which has never been seen in our nation’s history.”
Senate Majority Leader Charles E. Schumer argued that impeachment is not just about removal but also about disbarring bad actors from holding federal office again. Ruling that the Senate does not have the power to try Trump “would amount to a constitutional get-out-of-jail-free card for any president who commits an impeachable offense,” the New York Democrat said.
The Senate voted 55-45 to table Paul’s point of order. But the vote showed that regardless of what happens in the trial, there almost certainly won’t be enough Republican support to convict Trump, which requires 67 votes, or two-thirds of the Senate.
Paul told reporters before the vote his goal was to demonstrate “there’s no chance” House Democrats prosecuting the case will get a conviction.
“If 34 people support my resolution that this is an unconstitutional proceeding, it shows they don’t have the votes and we’re basically wasting our time,” he said.
After Paul’s point of order was tabled, the Senate voted, 83-17, to approve a pretrial schedule delaying oral arguments for two weeks to give House impeachment managers and Trump’s defense team time to prepare legal arguments and submit written briefs.
The schedule, which Schumer and Senate Minority Leader Mitch McConnell agreed to Friday, has the final legal brief due Feb. 8, followed by oral arguments Feb. 9.
“That’s been signed off on by the [former] president’s lawyers. And they believe they are set up here to have a fair process,” McConnell told reporters Tuesday. “I think that’s important.”
In the two weeks since the House voted 232-197 to impeach Trump for inciting insurrection, many Senate Republicans have said the Senate should dismiss the charge rather than hold a trial. Some have said doing so would allow the country to move on.
“Will it heal? Will it unify? I think the answer is clearly it will not,” Wisconsin GOP Sen. Ron Johnson said in floor remarks Tuesday. “A trial of a former president is simply vindictive. It will divide. It is like opening up a wound and throwing salt in it.”
Most Republicans have simply argued the Constitution does not allow a former president to be tried.
“We’re now being asked to convict a president who’s been impeached and he’s no longer in office. To me, this lacks legitimacy as I read the Constitution,” Senate Republican Conference Chair John Barrasso told reporters.
Fellow Wyoming Republican Sen. Cynthia Lummis also said she believed the trial is unconstitutional.
“The Constitution plainly says ‘the president,'” she said.
Several Republicans, including Paul and Barrasso, argued that Chief Justice John G. Roberts Jr. declining to preside over Trump’s second trial bolsters the argument that it’s unconstitutional.
Ahead of the vote Tuesday, McConnell invited Jonathan Turley, a constitutional law professor at George Washington University, to discuss the legal arguments during the weekly Senate Republican Conference lunch.
Turley, who had argued the constitutional case against Trump’s first impeachment as a GOP witness during a 2019 House Judiciary Committee hearing, told reporters he presented senators with both sides of the debate.
Turley said he explained the “value” in impeaching and trying any former federal official, is “the condemnation of conduct as well as possible disqualification” from holding office afterward, but that he personally believes “those benefits are outweighed by the cost, particularly in this impeachment.”
Republicans said they weren’t pressured to vote a specific way on Paul’s point of order.
“It’s a vote of conscience,” said Texas Sen. John Cornyn, who ultimately sided with Paul.
Not all Republicans were convinced the trial is unconstitutional, with five voting with Democrats to dismiss Paul’s point of order.
“The preponderance of opinion with regards to the constitutionality of a trial of impeachment of a former president is saying that it is a constitutional process, and so I intend to so vote,” Utah GOP Rep. Mitt Romney told reporters before the vote.
Sen. Lisa Murkowski agreed with Romney’s assessment.
“My review of it has led me to conclude that it is constitutional, in recognizing that impeachment is not solely about removing a president, it is also a matter of political consequence,” the Alaska Republican said.
Democrats argued that Republicans trying to dismiss the trial on constitutional grounds were looking for a way to avoid deciding the case against Trump based on the evidence.
“They don’t want to argue the merits,” Michigan Sen. Gary Peters said. “The merits of the case are very clear that we have a president who incited a violent attack on the United States Capitol and on our very democracy, so it’s absolutely critical that we call that out and make sure that future presidents understand that this is completely unacceptable behavior and will never be tolerated by the American people.”
Story by Lindsey McPherson.