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, the Kentucky Republican argued.
“Private citizens don’t get impeached. Impeachment is for removal from office, and the accused here has already left office,” Paul 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. A conviction would require 67 votes, or two-thirds of the Senate.
Paul told reporters before the vote that his goal was to demonstrate “there’s no chance” the case will result in 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.
Some Republicans who voted against the motion to table said they’re open to hearing arguments in the trial.
“I do have questions about the constitutionality from my reading of the Constitution, because it’s pretty plain it’s about removal,” Ohio Sen. Rob Portman said, before adding: “But I’ve not made my mind up. I’m a juror.”
Senate Republican Whip John Thune said he didn’t think Tuesday’s vote “binds anybody” but most of the conference believes the argument for trying a president no longer in office is “on really shaky ground.”
Several Republicans — even Maine’s Susan Collins, who believes the trial is constitutional — said Tuesday’s vote is likely to track with a vote on whether to convict Trump.
“It’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted,” Collins said. “Just do the math.”
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 and submit written briefs.
“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 Republican Ron Johnson said Tuesday. “A trial of a former president is simply vindictive.”
Most Republicans have simply argued that 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 Chairman John Barrasso told reporters.
Ahead of Tuesday’s vote, 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 hearing, told reporters he presented senators with both sides of the debate.
Turley said he explained that 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 he said he personally believes “those benefits are outweighed by the cost, particularly in this impeachment.”
Not all Republicans were convinced the trial is unconstitutional, with five voting with Democrats to dismiss Paul’s point of order: Collins, Utah’s Mitt Romney, Alaska’s Lisa Murkowski, Nebraska’s Ben Sasse and Pennsylvania’s Patrick J. Toomey.
“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,” Romney told reporters before the vote.
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.”