Nearly every Senate Republican declared Tuesday that putting a former president on trial for impeachment is unconstitutional, indicating that the House’s case against Donald Trump is almost certain to fail.
The procedural vote, forced by Sen. Rand Paul, underscores the significant hurdles facing the House’s impeachment managers, who will need to convince at least 17 Republican senators in order to secure a conviction. Paul’s motion to declare the trial unconstitutional ultimately failed because Democrats opposed it; however, 45 GOP senators voted to affirm the Kentucky Republican's view, delivering an early and possibly fatal blow to the House’s case.
Some Republicans said the vote did not necessarily indicate their views on the merits of the House’s case against Trump, in part because Paul’s motion focused on a narrow procedural question. But Paul’s effort reflects the widespread belief among Republicans that the Senate should not hold an impeachment trial because Trump is now a private citizen and therefore is not subject to the punishment of removal from office — though that view has been strongly challenged by legal scholars across the political spectrum.
Just five GOP senators — Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse and Pat Toomey — voted with all 50 Democrats to affirm the trial as constitutional and allow it to move forward.
“If you voted that it was unconstitutional, how in the world would you ever vote to convict somebody for this?” Paul told reporters. “This vote indicates it’s over. The trial is all over.”
Immediately before the vote, senators were sworn in for the trial, which is set to formally begin on Feb. 8. The House impeached Trump earlier this month on one charge of inciting the insurrection at the Capitol on Jan. 6, when pro-Trump rioters stormed the building in a rampage that left five people dead.
While Paul said the vote shows that the House’s impeachment case is “dead on arrival” in the Senate, it is possible that some senators judge the House’s case differently on its merits, especially as new information about the Jan. 6 insurrection continues to be revealed. Two-thirds of the Senate, or 67 senators, must vote for conviction in order for Trump to face punishments including being barred from holding federal office in the future.
Collins (R-Maine), who voted against Paul’s motion, agreed that the vote was indicative of the final vote on conviction. “Do the math,” she said. “I think that it’s extraordinarily unlikely the president will be convicted.”
“I don't think Democrats expect to have the votes to convict,” Sen. John Cornyn (R-Texas) added. “I don't think this is about accomplishing that. I think this is an effort to embarrass not only the former president but also members of the opposing party.”
Indeed, some of the 45 GOP senators who declared the trial unconstitutional said they would still weigh the evidence the House managers present independent of their vote on Tuesday, meaning that more than just five Republicans could be in play for conviction. Still, Tuesday’s vote strongly suggests that the House managers will fall well short of the two-thirds threshold.
“It emphasizes the importance of framing the evidence in a powerful way, and the trial team may want to evaluate whether witnesses will be called in effect to recall what Trump failed to do when he watched the assault in real time,” Sen. Richard Blumenthal (D-Conn.) said, referencing the ongoing debate among Democrats over whether to drag out the trial by allowing the House managers and Trump’s defense team to seek witness testimony.
Republicans have been rallying around the legal argument that the Senate has no authority to put a former president on trial. Constitutional law professor Jonathan Turley, who has defended Trump on similar matters in the past, joined GOP senators for their weekly lunch on Tuesday.
Critics of that argument note that federal courts have consistently deferred to Congress to set its own rules and procedures, including the Senate’s “sole power” to hold trials for impeachment charges, as outlined in the Constitution. They also say that a president or any other official subject to impeachment could simply resign immediately before the Senate convicts the individual, thereby evading punishment that could include barring them from holding federal public office again.
Senate Majority Leader Chuck Schumer said Paul’s argument would allow a government official to “avoid a vote on disqualification by simply resigning.”
“By constitutional text, precedent and basic common sense, it is clearly and certainly constitutional to hold a trial for a former official,” Schumer said.
Romney (R-Utah), who has hinted that he would vote to convict Trump in the trial, pushed back against Paul’s effort, saying “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.”
Senate Minority Leader Mitch McConnell was among the majority of GOP senators who voted alongside Paul. McConnell has been mostly mum about the House’s impeachment charges, though he indicated earlier this month that he was going into the trial with an open mind and later said Trump bears responsibility for the deadly Jan. 6 insurrection.
Republicans and Democrats alike criticized Trump’s conduct and his rhetoric leading up to the insurrection, in which he advanced unsubstantiated claims of widespread voter fraud and falsely claimed that the 2020 presidential election was “stolen” from him. Just 10 House Republicans joined all Democrats in the vote to impeach Trump.
Ahead of the vote, Paul said Democrats were “angry, unhinged partisans, deranged by their hatred of the former president.”
“Shame on those who seek blame and revenge, and who choose to pervert a constitutional process while doing so,” Paul said on the Senate floor. “I want this body on record — every last person here.”
Murkowski (R-Alaska) said it was “unfortunate” that the Senate voted on Paul’s motion without significant debate.
“We don't get a lot of credit and we don't get a lot of allowance to change our mind around here,” Murkowski said.
During the Senate GOP lunch on Tuesday, Turley presented senators with both sides of the argument over the constitutionality of impeaching a former president. Some senators noted a recent letter from legal scholars, including some from the conservative Federalist Society, who argued a former president can be convicted, according to an attendee.
“We just talked about the history from both sides,” Turley told reporters after the lunch. “It’s just a really difficult question. They have a tough decision to make.”
According to Paul, Turley “said there's not a chance in hell that you could convict Donald Trump in any court in the land of incitement.”