WASHINGTON — Moments after senators were sworn in Tuesday as jurors in former President Donald Trump’s impeachment trial, Republicans forced a vote on the constitutionality of the process that strongly suggested Democrats won’t be able to get the two-thirds support they will need for an eventual conviction next month.
Forty-five Senate Republicans supported a resolution by Sen. Rand Paul, R-Ky., that said the trial is illegal because Trump is a private citizen and no longer president. Democrats had the votes to table Paul’s motion, with support from five Republicans.
But the level of GOP support for Rand’s effort underscored how difficult it will be to get 17 Republicans to vote to convict Trump.
“I think it’ll be enough to show that, you know, more than a third of the Senate thinks that the whole proceeding is unconstitutional, which will show that ultimately they don’t have the votes,” Rand told reporters Tuesday before the vote.
Senate Majority Leader Charles E. Schumer, D-N.Y., said the theory that the Constitution prohibits a trial of a former official is “flat-out wrong by every frame of analysis.”
He pointed to the fact that the Constitution allows the Senate to not only remove an official from office, but also bar him or her from holding future office.
“If the framers intended impeachment to merely be a vehicle to remove sitting officials from their office, they would not have included that additional provision,” Schumer said on the Senate floor.
Republicans who joined Democrats against the Rand measure were Sens. Mitt Romney of Utah, Lisa Murkowski of Alaska, Susan Collins of Maine, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania.
Though many more GOP lawmakers have condemned Trump’s actions in inciting the Jan. 6 attack on the U.S. Capitol, the party has largely coalesced around the idea that an impeachment trial of a former president is unconstitutional.
Republicans say the fact that Supreme Court Chief Justice John G. Roberts Jr. is not presiding at the trial is proof that it is not valid. The Constitution says that the chief justice must preside at trials of the president. Roberts has reportedly signaled he does not want to be involved, and Senate President Pro Tempore Patrick Leahy, D-Vt., will preside over Trump’s trial instead. Leahy previously called on Trump to resign and will still get to vote.
“I think it’s a sham impeachment,” Paul said Monday. “If the chief justice isn’t coming over, it’s just a partisan farce.”
Democrats and several legal experts say there is precedent for the Senate to conduct an impeachment trial after the official has left office. In 1876, the Senate held an impeachment trial of a war secretary who resigned immediately before he was impeached by the House.
Paul’s motion — while procedural — forced Republicans into a difficult position. While several Republicans agree that a trial is not valid, a handful have left the door open to conviction.
Senate Minority Leader Mitch McConnell, R-Ky., for instance, told his fellow Republicans in a memo two weeks ago — while Trump was still in office — that he would listen to the legal arguments in the case, raising the possibility that he might vote to convict. But Tuesday, he supported Paul’s motion.
The Senate was somewhat caught off guard by having to vote Tuesday on a trial’s constitutionality.
“We’re not really having much of an opportunity to hear further discussion about it,” Murkowski said. “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.”
Unlike Trump’s first impeachment trial, when many Republicans said he did nothing wrong, GOP lawmakers this time are not defending Trump’s efforts to overturn the electoral college vote, his encouragement of protesters or his slow action to stop the violent attack that left five dead.
Instead Republicans are focusing on the precedent of holding an impeachment trial for a former president.
“I still have concerns about the constitutionality of this, and then the precedent it sets in trying to convict a private citizen,” said Sen. Joni Ernst, R-Iowa. “So in the future can this be used against President Obama?”
Senators were sworn in Tuesday and a summons was to be issued for Trump. But the trial will essentially be paused for two weeks to allow both sides time to prepare and file written briefs. Oral presentations will begin no sooner than Feb. 9.
Democrats held out hope that after hearing the evidence, more Republicans will vote to convict.
“They may not want to hear it, but they’re going to hear it,” said Sen. Sheldon Whitehouse, D-R.I. “I think letting the House managers make their case before we make any decisions about what’s over is probably the most rational course.”
