Republicans Rally Against Impeachment Trial,
Signaling Likely Acquittal for Trump
All but five Republican senators voted to challenge
the constitutionality of the trial, suggesting that Democrats were unlikely to
find the 17 they would need to join them in convicting the former president.
By Nicholas
Fandos
Jan. 26,
2021
Updated
8:54 p.m. ET
WASHINGTON
— Senate Republicans rallied on Tuesday against trying former President Donald
J. Trump for “incitement of insurrection” at the Capitol, with only five
members of his party joining Democrats in a vote to go forward with his
impeachment trial.
By a vote
of 55-to-45, the Senate narrowly killed a Republican effort to dismiss the
proceeding as unconstitutional because Mr. Trump is no longer in office. But
the numbers showed that loyal Republicans were again poised to spare him from
conviction, this time despite his role in stirring up a mob that violently
targeted lawmakers and the vice president on Jan. 6 as Congress met to finalize
the election.
“I think
it’s pretty obvious from the vote today that it is extraordinarily unlikely
that the president will be convicted,” said Senator Susan Collins of Maine, one
of the five Republicans who voted to proceed to trial. “Just do the math.”
It would
take two-thirds of senators — 67 votes — to attain a conviction, meaning 17
Republicans would have to cross party lines to side with Democrats in finding
Mr. Trump guilty. If they did, an additional vote to disqualify him from ever
holding office again would take a simple majority.
Aside from
Ms. Collins, the only Republicans who joined Democrats in voting to reject the
constitutional objection and proceed were Senators Lisa Murkowski of Alaska,
Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick J. Toomey of
Pennsylvania. All five had previously said they were open to hearing the
House’s impeachment case, which was adopted in a bipartisan vote a week after
the attack.
With the
facts of the case still spilling forth and the meat of the trial delayed for
two weeks, senators could change their views. Several Republicans who voted on
Tuesday to uphold the constitutional challenge, which would have effectively
killed the trial, rushed afterward to clarify that they remained open-minded
about the trial, which next convenes on Feb. 9.
In the
weeks since the attack, Mr. Trump has made no apology for his actions,
including spreading falsehoods about election fraud and urging his supporters
gathered outside the White House on Jan. 6 to march to the Capitol, confront
members of Congress formalizing his election loss and “fight like hell.”
But most
agreed that whatever window of possibility there had been for bipartisan
condemnation of Mr. Trump by lawmakers who were evacuated from the Capitol amid
the deadly assault was closing fast, as Republicans were reminded once again of
Mr. Trump’s remarkable hold on their party and the risks of crossing him. The
10 House Republicans who broke with their party to support the impeachment
charge are already facing an intense backlash, both at home and in Washington.
It appeared
that Senator Mitch McConnell of Kentucky, the Republican leader, was among
those making such a calculation. He had twice signaled in recent days — through
advisers and then in a letter to colleagues — that he was open to convicting a
former president he privately disdains, and he publicly asserted last week that
Mr. Trump had “provoked” the mob.
But if Mr.
McConnell was trying to soften the ground for a faction of Republicans to
abandon Mr. Trump and jettison him from the party, it had become increasingly
clear that no such coalition was emerging.
When his
fellow Kentuckian Senator Rand Paul lodged a constitutional objection to the
proceeding minutes after the Senate convened as a court of impeachment, Mr.
McConnell voted with the vast majority of his conference in favor of the
challenge.
It seemed
to be a recognition that Republicans were not so keen to move on from Mr.
Trump, whether out of fear of his promises of retribution and his overwhelming
popularity with the party’s core supporters, or out of a belief that the fight
was simply not worth having.
Democrats
feared something more conspiratorial, pointing out that it was Mr. McConnell
who, as majority leader, refused Democrats’ entreaties to begin the impeachment
trial two weeks ago, when Mr. Trump was still president. On Tuesday, the
Republican leader turned around and sided with Mr. Paul’s argument that trying
a former president was unconstitutional.
Mr.
McConnell made no public comment about his views of the vote, nor did he speak
up on the matter during a private Republican luncheon beforehand, according to
people familiar with the session.
The
showdown caught many senators off guard on a day that they expected to be
devoted largely to the carefully scripted ceremony and logistics of a trial.
Senator
Patrick J. Leahy, Democrat of Vermont and the Senate president pro tempore, was
sworn in as the presiding officer and then asked all 100 senators to take an
oath to administer “impartial justice” during the trial. Senators were warned
by the sergeant-at-arms “on pain of imprisonment” to remain silent.
It was then
that Mr. Paul, an outspoken defender of Mr. Trump, lodged his formal objection.
“Private
citizens don’t get impeached,” Mr. Paul had said a short time earlier, calling
the trial “deranged” and vindictive. “Impeachment is for removal from office,
and the accused here has already left office.”
Senator
Chuck Schumer, Democrat of New York and the majority leader, quickly moved to
shut down the request.
“The theory
that the impeachment of a former official is unconstitutional is flat-out wrong
by every frame of analysis,” Mr. Schumer said. “It has been completely debunked
by constitutional scholars from all across the political spectrum.”
The Senate
has clearly taken that position in the past. In 1876, as the House was
preparing to impeach him on corruption charges, William Belknap, Ulysses S.
Grant’s secretary of war, hurried to the White House, where he tendered his
resignation in tears just before Congress could act. The House proceeded
anyway, and when the case arrived in the Senate, a majority of the body decided
that it retained jurisdiction to hear it, notwithstanding Belknap’s departure
from office.
Support for
a constitutional argument against holding the trial had been growing in the
Senate in recent days, particularly among Republicans who showed little
interest in mounting any substantive defense of Mr. Trump’s conduct. But the
overwhelming level of Republican support exceeded what almost anyone was
expecting.
Mr. Paul
declared victory, saying, “Forty-five votes means the impeachment trial is dead
on arrival.”
Ms.
Murkowski, who has praised the House’s impeachment and called Mr. Trump’s
actions “unlawful,” reluctantly agreed. She told reporters that she feared that
it would be impossible for most of her Republican colleagues to truly consider
supporting a conviction after they had put themselves on record arguing that
the trial should not even take place.
“That’s why
I thought it was a little unfortunate that we had this very spontaneous vote on
an extraordinarily significant matter without the considered debate and
analysis,” she said. “People had to make really quick decisions.”
But other
Republicans said their votes to uphold Mr. Paul’s objection should not be read
as opposition to hearing the case against Mr. Trump.
Senator Rob
Portman of Ohio said that he voted with Mr. Paul because he wanted a “fulsome
discussion” on the issue of constitutionality, not necessarily to kill the
trial.
“I’ve not
made my mind up,” he said. “I’m a juror.”
He and
Senator John Thune of South Dakota, the Republican whip, suggested Mr.
McConnell might feel the same way.
“I don’t
think it binds anybody once the trial starts,” Mr. Thune said.
Far from
settled, the argument over constitutionality will reappear when the trial
reconvenes in February, when senators may seek to use it as justification for
voting to acquit. The House managers have already begun preparing a
constitutional justification for proceeding, and Mr. Trump’s lawyers will be
asked to argue the opposite as a key plank of their defense.
The debate
arises from the fact that the Constitution does not explicitly discuss
impeachments of former officials or instruct Congress how to handle a case like
Mr. Trump’s, where the president was impeached while still in office but not
put on trial until after his term expired.
Senate
Republicans have embraced a legal theory that argues that the document’s
silence means the Senate does not have authority to try former officials
whatsoever, even if the first stage of the process, impeachment, took place
before they left.
Just before
the vote, Mr. McConnell had invited Jonathan Turley, a George Washington
University law professor, to speak about the constitutional debate at the regularly
scheduled Republican luncheon. Mr. Turley has taken a more nuanced position
than some who argue that trying a former official is strictly unconstitutional.
He argues instead that it is “constitutionally unsound” to proceed and could
set a dangerous precedent whereby a Congress of one party could go about
charging and punishing the leaders of another at whim.
But other
leading constitutional scholars say that view is backward, and a trial of a
former official — particularly one who just left office — is entirely
consistent with the framers’ intentions to hold public officials accountable.
If it was not, they argue, officials could routinely commit high crimes and
misdemeanors in their final weeks and months in office, confident they would
avoid punishment.
“If an
official could only be disqualified while he or she still held office, then an
official who betrayed the public trust and was impeached could avoid
accountability simply by resigning one minute before the Senate’s final
conviction vote,” a group of 150 prominent legal scholars, including a founder
of the conservative Federalist Society, wrote last week. “The framers did not
design the Constitution’s checks and balances to be so easily undermined.
History supports a reading of the Constitution that allows Congress to impeach,
try, convict and disqualify former officers.”
Emily
Cochrane and Katie Benner contributed reporting.
Nicholas
Fandos is a national reporter based in Washington. He has covered Congress
since 2017 and is part of a team that chronicled investigations by the Justice
Department and Congress into President Trump and his administration. @npfandos
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