The Senate on Tuesday rejected a motion from Sen. Rand Paul (R-KY) to dismiss the constitutionality of former President Trump’s impeachment trial, but the test vote offered an early preview of how GOP Senators feel about the second impeachment trial as well as the highly unlikely the Senate will have the necessary votes needed to convict Trump.
The procedural vote was killed on the vote of 55- 45, with five Republicans crossing party lines in joining all 50 Democrats to reject the move.
Republican Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania but is on record declaring the proceedings are constitutional and indicating how they will vote for Trump’s guilt or innocence during the Senate trial set to begin February 9.
Murkowski, who has been critical of Trump rejected Paul’s move.
“My review of it has led me to conclude that it is constitutional, in recognising that impeachment is not solely about removing a president, it is also a matter of political consequence,” she said.
Senate Minority Leader Mitch McConnell (R-KY) was among the 45 Republicans who voted against the point of order, brought by Paul, indicating McConnell supports Paul’s position that an impeachment trial of a former president is unconstitutional.
The Senate vote on Tuesday effectively put all 50 GOP senators on record as to whether they believe a trial of a former President was constitutional. Given the limited language in the Constitution on impeaching a former president, legal experts are split about whether the Senate can hold an impeachment trial, let alone convict a former president now a private citizen. Democrats, however, counter these claims and have pointed to legal scholars on both ends of the political spectrum who say a trial is constitutional.
“I want to put the Senate on the record,” Paul wrote in a Tuesday op-ed ahead of Tuesday vote. “I will insist on holding a vote that makes every last senator vote on whether they believe this proceeding, the impeachment trial of a private citizen, is unconstitutional, illegal, and essentially a bill of attainder.”
Speaking from the Senate floor, Paul cited his point of order the impeachment trial is unconstitutional due to the fact that Trump is out of office and now a private citizen.
“I make a point of order that this proceeding which would try a private citizen and not a president, a vice president or civil officer violates the Constitution and is not in order,” Paul said, warning that he wanted to force his colleagues to go on the record with their vote.
The Kentucky Senator also objected to the fact that the Democrats “brazenly” appointing a “pro-impeachment Democrat to preside over the trial” referencing Democratic Sen. Patrick Leahy, the president pro tempore of Senate will take over the role.
“If we are about to try to convict a president, then where is the chief justice?” Paul asked. “If the accused is no longer president, then where is the constitutional power to convict him? His presence in the chief justice absence demonstrates that this is not a trial of the president but of a private citizen.”
Chief Justice John Roberts will not be presiding at the trial, as he did during Trump’s first impeachment that occurred just a year ago around this time, potentially affecting the gravitas of the proceedings. Roberts chose not to oversee the proceedings because Trump is no longer in office
Paul said the “Hyper-partisan Democrats are about to drag our great country down into the gutter of rancor and vitriol, the likes of which have never been seen in our nation’s history.”
“Instead of doing the nation’s work with their new majorities in the House, Senate, and executive branch, Democrats are wasting the people’s time on a partisan vendetta against a man no longer in office,” Paul said, slamming them for prioritizing the impeachment trial of a departed president over the work of actually legislating.
“Democrats insist on applying a test of incitement to a Republican that they refuse to apply to themselves,” he added. “I want Democrats to raise their hands if they have ever given a speech that says ‘take back,’ ‘fight for your country,’ who hasn’t used the words fight figuratively? Are we going to put every politician in jail — are we going to impeach every politician who has used the words fight figuratively in a speech? Shame!”
“I want this body on record, every last person here: Is this how you think politics should be?” Paul said.
Senate Majority Leader Chuck Schumer (D-NY) said Paul’s interpretation of the Constitution was “flat-out wrong,” and noted that the Senate had previously held an impeachment trial for an official who was no longer in office in 1876.
“The point of order is ill-founded, and in any case, premature,” Schumer said before moving to table the motion.
Paul argued after the vote that the fact that 45 Republicans sided with him “shows that impeachment is dead on arrival.”
“It’s one of the few times in Washington where a loss is actually a victory,” Paul told reporters after the vote. “Forty-five votes means the impeachment trial is dead on arrival.”
“If you voted that it was unconstitutional then how in the world would you ever hope to convict somebody for this?” Paul adding, “45 of us, almost the entire caucus, 95% of the caucus, voted that the whole proceeding was unconstitutional. Democrats can beat this partisan horse as long as they want — this vote indicates it’s over, the trial is all over.”
At least 17 Republicans are needed to vote with all 50 Democrats in order to convict Trump.