After the 55-to-45 tally fell short of the 67 votes needed to convict Trump and possibly bar him from holding office in the future, several Democratic senators said Wednesday that they were eager to move on to coronavirus pandemic relief, climate legislation, Cabinet confirmations and other items on the party’s to-do list.
Sen. Tim Kaine of Virginia said he was likely to file a censure resolution that would serve as an alternative to convicting Trump on the impeachment charge.
“We have to hold President Trump accountable, and then we also have to balance that with the public’s number one demand, which is covid relief,” he said in an interview. He said if Democratic leaders move forward with a trial, which appears all but certain, it would be possible to complete it in as little as a week.
Momentum built toward a speedy trial as the debate over how to handle Trump ricocheted through the Democratic caucus on Wednesday.
In the two weeks since the House impeached Trump for “incitement of insurrection,” Democrats have signaled that they are likely to rely on an extensive video record of the events of Jan. 6 but not call witnesses or present revelatory new evidence, which would probably extend the proceedings for weeks.
“Make no mistake, there will be a trial, and the evidence against the former president will be presented in living color for the nation and every one of us to see once again,” Senate Majority Leader Charles E. Schumer (D-N.Y.) said Wednesday. “We will all watch what happened. We will listen to what happened, and then we will vote. We will pass judgment as our solemn duty under the Constitution demands. And in turn, we will all be judged on how we respond.”
Some Democrats complained that an abbreviated trial would be shortsighted, ignoring the historical mandate to document what happened before, during and after the riot.
Sen. Angus King (I-Maine) said he wanted the trial to document how much Trump personally knew about what the rioters planned and what actions he took to quell the violence. “We have an obligation to get the facts, it seems to me,” said King, who caucuses with Democrats.
But others think the case is clear-cut and that Tuesday’s vote indicated no chance of conviction, meaning that senators should base their votes on what they saw with their own eyes.
“A lot of us were witnesses to what took place,” Sen. Sheldon Whitehouse (D-R.I.) told reporters. “There’s been enormous press coverage. If you don’t know what happened that day, you really haven’t been paying attention. So I think there is the prospect, at least, of quite a rapid trial.”
Sen. Bernie Sanders (I-Vt.), who caucuses with the Democrats, also called for a quick proceeding: “I would hope that we deal with that as quickly as possible to start addressing the needs of working families.”
The trial is set to begin Feb. 9 after House impeachment managers and Trump’s defense team trade written briefs laying out their arguments. The structure of the trial itself is subject to negotiations between Schumer and Minority Leader Mitch McConnell (R-Ky.), who voted in Trump’s favor on Tuesday’s test vote.
Trump’s first impeachment trial, which ended in February 2020 with his acquittal on two articles, lasted 21 days. Kaine said Wednesday that it was already obvious some parts of the last trial could be jettisoned this time around — such as the two days of senator questions that were presented to the managers and the defense team.
“If you just used the template from last year, you could see some pieces of the trial from last year that might get foreshortened,” he said. “We might decide we don’t have a lot of questions. You know, we were here and we saw it. We know what happened.”
Kaine is pitching his censure resolution to Republicans as a potentially more politically palatable alternative to convicting Trump and barring him from future office. But he is also making the case to Democrats that his resolution would have much the same effect as a conviction, by condemning the former president and laying the foundation to keep him from returning to the presidency under the terms of the 14th Amendment.
Section 3 of the amendment holds that no government official can hold office “who, having previously taken an oath . . . to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”
The provision, ratified in 1868, was written to keep avowed Confederates out of government office. It has been unevenly and infrequently applied since, and there is scant precedent or case law to determine who has the authority to disqualify a president or any other non-congressional official.
Kaine said his resolution would echo the amendment’s language, calling the Capitol attack “an insurrection against the Constitution of the United States” and finding that Trump “gave aid and comfort” to it.
“It’s more than just a censure, saying, ‘Hey, you did wrong,’ ” he said. “It makes a factual finding under the precise language of the 14th Amendment that would likely put an obstacle in Donald Trump’s path if he were to run for office again.”
Laurence Tribe, a Harvard Law professor, said invoking the 14th Amendment provision is “much more complex than some people assume” and said simply passing a resolution as Kaine is proposing would not be sufficient to bar Trump from office.
“I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment,” he wrote in an email.
Kaine acknowledged the legal ambiguities but argued that they are no more daunting than the legal issues Trump would raise were he to be convicted and barred from future office.
“Just as the question of impeachment after you’ve left office is not ironclad one way or the other, this one is not ironclad,” Kaine said. “It leaves the door open for folks to make arguments down the road.”
It remains unclear whether the censure measure can attract more than the five Republican senators who joined Democrats in Tuesday’s test vote.
Sen. Susan M. Collins (R-Maine), who has worked on the proposal with Kaine, said she viewed the censure debate as something that would take place “in lieu of the trial” — not in addition to it. She told reporters on Wednesday that it was “obvious” in light of the Tuesday vote that Trump would be acquitted.
“It seems to me there is benefit in looking at an alternative that might be able to garner bipartisan support,” she said. “I don’t know whether it would or not.”
Other Republicans suggested the level of GOP support for censure, however, might not grow much beyond that for impeachment and conviction. Censure of a president has previously been a matter of questionable constitutionality, dating back to an abortive bipartisan effort to censure President Bill Clinton during impeachment proceedings in 1999.
Sen. John Thune of South Dakota, the No. 2 GOP leader, called a censure push “hypothetical” and said it was clear that Democrats would go forward with impeachment.
“That’s the vote that matters to them,” he said. “I’ve heard some rumblings [on censure] but not serious discussion that had support from enough Democrats or Republicans for that matter to make this a realistic option.”
Among the GOP lawmakers flatly ruling it out Wednesday was Sen. John Cornyn of Texas, who said he would have the same concerns with censuring a former official as he does with impeaching one: that it would set a bad precedent for Congress to retroactively punish ex-officeholders.
“I think we ought to encourage people to move on rather than live in the past,” he said.
Biden has been hands-off concerning an impeachment trial, but aides have signaled that he wants the Senate to get going on his legislative agenda.
“His focus will be on covid relief,” White House press secretary Jen Psaki said Wednesday. “As to what steps they take to hold the former president accountable, he’ll leave it to them.”
Among the reasons Democrats are likely to move forward with the trial is a desire among lawmakers — most of whom were at the Capitol complex on Jan. 6 — to ensure some formal accountability for Trump, who urged his supporters to gather in Washington as Congress tallied electoral votes certifying the Biden victory, then told many of them at a rally near the White House that they should “fight like hell.”
“It’s hard to get over it if you lived it, and many of us in this chamber did,” Sen. Richard J. Durbin (D-Ill.), the majority whip, said Wednesday. “We certainly shouldn’t be party to rewriting history. We need to make a record — a record of fact, not just for our current deliberations, but for history.”
Durbin, however, told reporters that if, after a trial, Trump is not convicted, “perhaps we’ll consider some alternatives.”
Also supporting a trial is Sen. Joe Manchin III of West Virginia, a centrist Democrat who typically tries to find common ground with Republicans.
“This is much, much more serious than anything we’ve ever seen in our lifetime and it’s really the purpose of having articles of impeachment in the Constitution,” Manchin said Wednesday. “We want to make sure that no one ever does this again, never thinks about doing this again — sedition and insurrection.”
Karoun Demirjian, Seung Min Kim and Ann Marimow contributed to this report.