Senate Republicans seem ready to hand former President Trump his second acquittal in an impeachment trial in a little more than a year after just five GOP senators on Tuesday rejected a motion that the trial was unconstitutional.
Most GOP senators haven’t formally announced how they will vote on convicting Trump, and, in a shift from 2020, most are not rushing to defend him after a mob, egged on by the then-president, sacked the Capitol.
But Tuesday’s vote, which sidelined the effort from Sen. Rand Paul (R-Ky.), sends a clear signal to everyone in Washington that the trial is highly unlikely to end with a Trump conviction vote.
At least 17 GOP votes to convict would be needed to reach the two-thirds majority.
“I can’t see how you get 17. I think that that was a test vote,” said Sen. John Boozman (R-Ark.) after 44 GOP senators sided with Paul.
While it is possible senators could change their minds, few think that is likely.
Sen. Mike Rounds (R-S.D.) said the Tuesday vote was a “pretty good indication” that most Republicans don’t believe the trial is constitutional.
“It would really surprise me if any of those individuals decided that it was appropriate to move forward with an impeachment,” Rounds said.
Sen. James Inhofe (R-Okla.) said the vote was a “good indication” of where the final vote on convicting Trump would end up, while Paul declared the chances that Trump would become the first president to be found guilty “dead on arrival.”
The vote comes as Republicans have been increasingly signaling they view the impeachment trial as unconstitutional. Trump will be the first president to have a trial after leaving office, but the Senate previously held a trial for a Cabinet official who was no longer in office.
“We're now being asked to convict a president who's been impeached and he's no longer in office. To me, this lacks legitimacy as I read the Constitution,” said Sen. John Barrasso (Wyo.), the No. 3 GOP senator.
Sen. Joni Ernst (R-Iowa) said in a statement that while Trump’s rhetoric on Jan. 6 showed “poor leadership,” she was also concerned that “the president is no longer in office” and Congress could be “opening itself to a dangerous standard.”
Asked about the upcoming trial, Ernst told reporters that Tuesday’s vote shows “they’ve got a long ways to go to prove it.”
Barrasso and Ernst joined with every other member of GOP leadership to vote against tabling Paul’s efforts to deem the impeachment trial unconstitutional.
Senate Minority Leader Mitch McConnell (R-Ky.), who said last week that Trump “provoked” the mob, supported Paul’s efforts.
Some Republicans cautioned against mapping the vote total on Paul’s effort as a direct correlation of what the breakdown will be on the final vote on convicting Trump.
Sen. John Thune (R-S.D.) called Tuesday’s vote “indicative of where a lot of people’s heads are” but stressed that he didn’t think it binded anyone into voting to acquit Trump at the end of the trial.
“I think most of us thought that the threshold issue of whether or not you can remove, as the Constitution suggests, somebody who's no longer in office ... from a constitutional standpoint, it's on really shaky ground,” Thune said.
Sen. Rob Portman (R-Ohio), who voted against tabling Paul, said he wasn’t voting to say a trial would not be constitutional but was voting to say the issue should be discussed. Tuesday’s vote effectively pigeonholed Paul.
“I mean, I've the same position Mitch McConnell has. He didn't do that to be tabled either, even though he wants to have, you know, a fulsome discussion,” Portman said.
He added that he viewed Tuesday’s vote and whether he would ultimately vote to acquit Trump as “a totally different issue, as far as I’m concerned.”
Republicans have questioned if the Senate, by moving forward, would be setting a precedent under which Republicans, once they are back in the majority, could reach back and try to impeach former presidents, in a warning shot to Democrats.
“Could we go back and try President Obama?” asked Sen. John Cornyn (R-Texas), an adviser to McConnell.
Sen. Thom Tillis (R-N.C.) told reporters that Republicans were looking at the “broader issue” about impeaching a private citizen and viewed the current discussion as “kind of laying down a marker.”
Republicans got a closed-door briefing on Tuesday from legal professor Jonathan Turley, where they quizzed him and discussed the constitutionality of holding an impeachment trial after a president has left office.
Sen. Lisa Murkowski (R-Alaska) appeared frustrated by the decision to force a vote, a move that appeared to catch GOP senators off guard, without more briefings and discussion within the caucus.
“Whether or not you’re going to see members change their mind after they’ve already taken a vote? I think that’s hard for people to do,” Murkowski added.
Asked about the implications for the outcome of the Senate trial, Sen. Susan Collins (R-Maine), who was also one of the five to oppose Paul, replied, “Just do the math.”
“It is extraordinarily unlikely the president will be convicted,” Collins said.
The GOP strategy is a sharp shift from 2020, when Republicans were pledging publicly that they would acquit Trump and defended him publicly throughout the trial.
Republicans fumed after Trump urged his followers to march to the Capitol, repeating his false claims that the election was “rigged.” And McConnell disclosed on Tuesday that he hadn't spoken to Trump since Dec. 15.
But Democrats are worried that the argument that the trial is unconstitutional is giving Republicans an option that GOP senators view is politically safe because it allows them to vote against convicting Trump, without having to specifically endorse his Jan. 6 rhetoric.
Sen. Tim Kaine (D-Va.), who has floated trying to bar Trump from office through the 14th Amendment, warned that the constitutional argument, which Sen. Tom Cotton (R-Ark.) articulated weeks ago, was emerging as a “safe harbor” for Republicans.