Trump’s trial is not scheduled to begin until Feb. 9, but senators were sworn in for the proceedings Tuesday, and they immediately voted on an objection raised by Sen. Rand Paul (R-Ky.) questioning the constitutional basis for the impeachment and removal of a former president.
“Impeachment is for removal from office, and the accused here has already left office,” he argued, adding that the trial would “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.”
But Democrats argue that Trump must be held accountable for the riot, which saw the Capitol overrun and resulted in the deaths of one police officer and four rioters. Paul’s argument, they said, suggests that presidents can act with impunity late in their terms.
Senate Majority Leader Charles E. Schumer (D-N.Y.) said Tuesday that the Republican argument is “flat-out wrong by every frame of analysis — constitutional context, historical practice, precedent and basic common sense.”
The final vote was 55 to 45 to kill Paul’s objection, with GOP Sens. Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Neb.) and Patrick J. Toomey (Pa.) joining all 50 Democrats.
The largely partisan vote indicated that, nearly three weeks after the Capitol attack, much of the GOP anger over Trump’s actions immediately before and during the siege has faded. Notably, Senate Minority Leader Mitch McConnell (R-Ky.) — who previously said Trump had “provoked” the Capitol mob — voted to back Paul and Trump, who has reached out to senators directly and through intermediaries to marshal support for his defense.
Convicting Trump would require support from 67 members of the 100-member body. The Democratic-led House has already impeached Trump a historic second time. If convicted in the Senate, the former president could be barred from holding future office with a subsequent majority vote.
Paul had sought to muster at least 34 votes in support of his objection to signal that there were enough senators with constitutional misgivings to secure an acquittal. After the vote, Paul declared that “the impeachment trial is dead on arrival.”
Sen. Lindsey O. Graham (R-S.C.), who has been advising Trump on his defense, said Tuesday that he considered 45 votes to be “a floor, not a ceiling” for an acquittal vote.
“He just needs to keep doing what he’s doing, and the trial will be over in a couple of weeks,” he told reporters.
A few senators who voted with Paul disputed that Tuesday’s vote was a foolproof indication of the trial’s outcome. Sen. Rob Portman (R-Ohio), for instance, told reporters that he wanted to hear further debate on the constitutionality question but had not yet decided whether to convict Trump.
But several other Republicans, including Collins, drew the conclusion that a Trump acquittal was now a fait accompli. “I think it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted,” she said. “Just do the math.”
Before the vote, Republican senators met for a private lunch where they heard from Jonathan Turley, a George Washington University law professor who has argued that a former president cannot be tried for impeachment.
Exiting the lunch, Turley said he had presented a nuanced argument: that the benefits of condemning a now-departed president were “outweighed by the cost” of setting a precedent for Congress to retroactively impeach and remove former presidents, creating a new political weapon.
The theory has gained traction among Republicans as a way to side with Trump while sidestepping the question of whether he incited the violence at the Capitol — the allegation at the heart of the impeachment effort.
Sen. Ron Johnson (R-Wis.) said he hoped that Tuesday’s vote would prompt Democrats to reassess whether it is worth having a trial.
“I hope my colleagues . . . look at it from the standpoint, is it wise to do this?” he said. “I would hope we would end this now. It’s just not wise. It’s not healing. It’s divisive.”
Democrats and many legal scholars have balked at the argument that a former president — or any former official — cannot be convicted in an impeachment trial.
“The theory that the Senate can’t try former officials would amount to a constitutional get-out-of-jail-free card for any president who commits an impeachable offense,” Schumer said.
“It makes no sense whatsoever that a president, or any official, could commit a heinous crime against our country and then defeat Congress’s impeachment powers by simply resigning, so as to avoid accountability and a vote to disqualify them from future office.”
Schumer and others have cited the precedent set in 1876, when Secretary of War William Belknap resigned moments before the House was set to vote on his impeachment on corruption charges. The House impeached Belknap anyway, and the Senate proceeded with a trial in which he was acquitted.
McConnell did not speak before Tuesday’s vote or release any statement squaring his vote with his previous statements critical of Trump’s behavior. In the immediate aftermath of the Capitol attack and the House impeachment, McConnell communicated to his GOP colleagues that he was open to supporting a conviction.
Sen. John Thune (R-S.D.), the minority whip, said Tuesday’s vote indicated that many Republicans consider the trial to be on “a very shaky foundation” but have not necessarily ruled out voting to convict.
“I, as a juror, am going to wait until the trial commences and hear the arguments on both sides,” he said. “And I think that’s where the leader is.”
The former president’s aides also have started putting GOP senators on notice about the impending trial vote, asserting that Trump will continue to be in a force within the Republican Party. Sen. Kevin Cramer (R-N.D.) said Brian Jack, a political aide to Trump, called him over the weekend to stress that Trump had no interest in starting a third party and that his post-presidency political activity would be with the GOP.
“I would say it wasn’t out of the blue,” Cramer said of the call, first reported by Politico. “I think it was strategic.”
Among the other key Republicans who aired constitutional concerns Tuesday was Sen. Charles E. Grassley (Iowa), a former chairman of the Senate Judiciary Committee and the longest-serving GOP senator.
He had qualms about the fact that Chief Justice John G. Roberts Jr., who is constitutionally mandated to preside over the impeachment trial of a sitting president, has opted not to appear at Trump’s second trial.
“That would send a pretty clear signal to me what Roberts thinks of the whole thing,” Grassley said.
Roberts, through a Supreme Court spokeswoman, has declined to comment.
Rather than Roberts, presiding over the trial will be Sen. Patrick J. Leahy (D-Vt.) — the Senate president pro tempore and currently the longest-serving senator. While Leahy pledged Monday to act fairly in the role, the image of a Democrat presiding over the trial of a GOP former president led several Republicans to cry foul.
“Brazenly appointing a pro-impeachment Democrat to preside over the trial is not fair or impartial and hardly encourages any kind of unity in our country,” Paul said Tuesday. “No, unity is the opposite of this travesty we are about to witness.”
A few Republicans, however, said they believed that the trial of a former president is constitutional. Murkowski told reporters Tuesday that, in her view, “impeachment is not solely about removing a president, it is also a matter of political consequence.”
Despite the broad constitutional concerns among Republicans, it appeared that Democrats had little intention of canceling or curtailing the trial. Some, including Sen. Richard Blumenthal (Conn.), said the vote Tuesday suggested that House impeachment managers needed to make an even more detailed case against Trump — calling witnesses and presenting evidence attesting to the depravity of his behavior leading up to and during the events of Jan. 6.
Blumenthal said he believed that the trial would rekindle the anger many Republicans felt in the immediate aftermath of the Capitol assault. “They were in a different frame of mind than today when they were voting on the motion to dismiss,” he said. “And I want to bring back the feelings of revulsion and terror that were caused on that day.”
Other Democrats suggested that Republicans were simply trying to avoid contending with the political consequences of rendering a judgment on Trump’s conduct.
“They don’t want to argue the merits,” said Sen. Gary Peters (D-Mich.). “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.”
Schumer on Tuesday said Trump’s behavior — which included spreading baseless theories about the November election being stolen, pressuring state officials to change vote tallies, encouraging supporters to rally in Washington as Congress certified the electoral college vote on Jan. 6, and then calling that day for ralliers to march to the Capitol — amounted to “the most despicable thing any president has ever done.”
“I believe he should be convicted,” he said.