By Mike DeBonis,
BREAKING: Trump may avoid conviction for inciting Capitol attack, as more than a third of senators signal opposition to impeachment.
This is a developing story and will be updated.
Many Republican senators prepared to support former president Donald Trump Tuesday in a key test vote Tuesday ahead of his forthcoming impeachment trial, signaling that the proceedings are likely to end with Trump’s acquittal on the charge that he incited the Jan. 6 Capitol riot.
Trump’s trial is not scheduled to begin until Feb. 9, but senators were set to be sworn in for the proceedings Tuesday. At that point, Sen. Rand Paul (R-Ky.) intended to raise an objection, 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 on the floor earlier in the day, 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.”
Democrats signaled they would immediately move to kill Paul’s objection, prompting a vote.
To convict Trump, it would require 67 members of the 100-member body. If convicted, Trump could be barred from holding future office with a subsequent majority vote. Paul sought to muster at least 34 votes to signal there are enough senators with constitutional misgivings to secure an acquittal.
Paul told reporters ahead of the vote Tuesday that he intended to show that the House impeachment case would be “dead on arrival” and that holding the trial would be “basically wasting our time.”
“There will be enough support on it to show there’s no chance they can impeach the president,” he said.
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.
The theory has gained traction among Republicans in the 10 days since the House impeached Trump for a second time, giving lawmakers — even those with misgivings over Trump’s conduct surrounding the Jan. 6 riot — a way to sidestep a direct assessment of the former president’s culpability for the violence at the Capitol.
Sen. Ron Johnson (R-Wis.) said he hoped that Tuesday’s vote would prompt Democrats to reassess if it was even worth having a trial.
“I hope my colleagues to 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 of impeachment. Not only does that signal that presidents can act with impunity late in their terms, they argue, but they also note that the Constitution specifically notes that a consequence of a conviction includes the possibility that an impeached official can be barred from future office.
“It defies precedent, historic practice, and basic common sense,” Schumer said Monday. “It makes no sense whatsoever that a president — or any official — could commit a heinous crime against our country and then defeat Congress’ impeachment powers by simply resigning, so as to avoid accountability and a vote to disqualify them from future office.”
Schumer and other have raised the precedent sent in 1876, when Secretary of War William Belknap resigned a matter of 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 Belknap was acquitted.
“The record is clear: The Senate decided it had the power to try former officials, and the reasons are obvious,” Schumer said. “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.”
Among the Republicans who aired constitutional concerns Tuesday was Sen. Charles E. Grassley (R-Iowa), a former chairman of the Senate Judiciary Committee and the longest-serving GOP senator. He raised 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.
Rather than Roberts, presiding over the trial will be Sen. Patrick J. Leahy (D-Vt.) — the Senate president pro tempore and 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 in fact constitutional. Sen. Lisa Murkowski (R-Alaska) told reporters Tuesday that, in her view, “impeachment is not solely about removing a president, it is also a matter of political consequence.”
Others have said they simply are undecided on the issue. Sen. Rob Portman (R-Ohio) said he had reviewed the Constitution and found the text of the impeachment provisions to be ambiguous.
“I know there are constitutional scholars who have strong views on both sides of this,” he said. “I think our job is to sit down and hear the arguments, and that’s what I plan to do.”
Despite the broad constitutional concerns among Republicans, it appeared Democrats had little stomach to cancel or curtail the trial. Several 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 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.