Former President Donald Trump appears headed for acquittal in his second impeachment trial after just five Republicans voted with Democrats to block an effort to declare it unconstitutional.
GOP Sen. Rand Paul’s bid to question the constitutionality of trying a former president was blocked on a 55-45 vote. Only five Republicans supported going forward with the trial. That serves as rough proxy for the eventual verdict and is well short of the two-thirds majority necessary for conviction.
“Forty-five votes means the impeachment trial is dead on arrival,” Paul said to reporters immediately after the Senate acted.
Republican Sens. Pat Toomey of Pennsylvania, Mitt Romney of Utah, Lisa Murkowski of Alaska, Ben Sasse of Nebraska and Susan Collins of Maine all voted with Democrats to block Paul’s effort, though that doesn’t necessarily indicate any or all would vote to convict.
Senate Majority Leader Chuck Schumer called Paul’s motion “ill-founded” and “premature.” He said history and precedent are clear that the Senate can try a president or other official who has left office.
The question has never been tested in the courts, but many legal scholars and several lower-level impeachments in the past suggest the Senate retains power to put Trump on trial even after his term ends.
Still, it offers a political argument that could give Republicans a chance to avoid having to cast judgment on Trump’s Jan. 6 actions, when he encouraged a crowd that went on to storm the Capitol. The ensuing riot left five people dead, including a police officer.
Speaking on the Senate floor earlier, Paul called the proceedings a “sham of an impeachment,” and insisted that Trump called on protesters to peacefully march on the Capitol.
“Are we going to put every politician in jail?” he asked.
Other GOP senators, including Joni Ernst of Iowa, Roger Wicker of Mississippi and Mike Braun of Indiana, have also questioned whether Trump can be tried, suggesting a growing number could align to acquit him on that basis.
Schumer on Monday dismissed arguments that the Constitution bars the Senate from trying a former president, calling it a “fringe legal theory.” He cited the research of numerous legal scholars and a precedent from 1876 when an impeachment trial was held for the secretary of war under President Ulysses S. Grant, even though he had resigned to avoid the proceedings.
Murkowski said before the vote that her review of the issue “has led me to conclude that it is constitutional, in recognizing that impeachment is not solely about removing a president. It is also a matter of political consequence.”
The House voted to impeach Trump on Jan. 13, with 10 Republicans joining all 222 Democrats in favor. The single article charges Trump with inciting the crowd of his supporters that rioted at the Capitol, leaving five people dead and disrupting the certification of President Joe Biden’s victory in the November election.
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