Republican Senate leaders are increasingly confident that former President Donald Trump won’t be at risk of conviction when his impeachment trial begins next month, expecting the votes to stay largely the same as Tuesday’s 55-to-45 test vote over the constitutionality of the trial.
Tuesday’s vote, forced by GOP Sen. Rand Paul of Kentucky over whether the trial was constitutional, made Republicans go on the record about the trial two weeks before it truly begins. But just five Republicans split with Paul to oppose his point of order that the trial of an ex-president was unconstitutional, in the clearest sign to date most Republicans aren’t likely to consider convicting Trump and barring him from running for office again.
“I can’t see it,” GOP Sen. John Cornyn of Texas said of the Senate reaching 67 votes for conviction. “I think there are serious constitutional and prudential questions that I’m most worried about. I don’t want to set a precedent here where you try private citizens nor censure them after they’ve left office. Once that weapon is unleashed then you can expect that to set the floor for future Congresses doing it to other presidents.”
Asked if Trump’s actions leading up to the January 6 riots were defensible, Cornyn said: “I’m not going to defend them. … I think he’s been held accountable in the court of public opinion already.”
The apparent certainty of the trial’s outcome — with the Senate well short of the 17 Republican senators needed for a two-thirds conviction — has some senators looking for an off-ramp, particularly as Democrats are eager to tackle President Joe Biden’s coronavirus legislation. Two senators, Democrat Tim Kaine of Virginia and Republican Susan Collins of Maine, say they’re working on a resolution to censure Trump. But senators in both parties quickly downplayed the notion that censure was a real alternative. Senate GOP Whip John Thune said that Democrats would want to hold a trial — and Republicans wouldn’t likely be open to a censure vote after one on whether to convict Trump.
Several top Republicans said after Tuesday’s vote they did not believe the trial was constitutional, although at least one, Rob Portman of Ohio, said he only viewed the vote as a procedural motion, not a position on the question of constitutionality.
Senate Minority Leader Mitch McConnell, who said privately leading up to the trial he was keeping an open mind, has not said why he voted with Paul on Tuesday, when he also declined to say whether Trump committed impeachable offenses.
Asked whether supporting Paul was a sign he wouldn’t convict or if he was still open to hearing the evidence, McConnell told CNN Wednesday, “Well, the trial hasn’t started yet. And I intend to participate in that and listen to the evidence.”
Senate Majority Leader Chuck Schumer slammed Republicans for voting against the trial, as Democrats charge that Senate Republicans are looking for an excuse to avoid holding Trump accountable.
“I regret to say for 45 Republican senators to vote for a spurious constitutional objection to the coming impeachment trial was deeply, deeply irresponsible,” said Schumer, a Democrat from New York. “Only five Republican senators are willing to take a principled stand against this reckless and ill-advised effort by members of this body who are eager to excuse President Trump’s campaign to overturn the election, and apparently, to excuse his incitement to the mob that every one of us experienced in this Capitol.”
The question of impeaching a former president is not settled, as it’s never happened before. But most legal scholars say there is a constitutional basis for doing so, and the Senate has previously tried former officials who resigned.
The House Democratic impeachment managers recognize they have to make both the constitutional case to a skeptical Republican body as well as demonstrate how the rioters who attacked the Capitol were incited by Trump. Democrats are still considering whether to call in witnesses, which could depend on whether there are any cooperative witnesses willing to voluntarily step forward, sidestepping any questions of executive privilege.
Still, the reality that the trial is highly unlikely to lead to a conviction has some Democrats eying other — almost as unlikely — options. Sen. Tim Kaine, a Virginia Democrat, said Wednesday he had drafted a resolution to censure Trump for his actions ahead of the January 6 riot, an effort that would hold Trump accountable and move more quickly than an impeachment trial.
“To do a trial knowing you’ll get 55 votes, at the max seems to me to be not the right prioritization of our time right now,” Kaine said.
Collins told reporters Wednesday that a censure resolution could be a bipartisan option “in lieu of the trial,” though she acknowledged the Senate appeared on track for holding the trial next month.
“Yesterday’s vote on the Senate floor shows that it is extremely unlikely that President Trump would be convicted, and that indeed the five votes to even proceed to a trial is probably the high mark on what you’re going to see for Republican support,” Collins said. “So, it seems to me that there is some value in looking at an alternative to proceeding with the trial.”
The effort, though, has been knocked down as a non-starter by both Democrats and Republicans.
Moderate Democratic Sen. Joe Manchin of West Virginia, for instance, threw cold water on the notion on Wednesday. “This is much, much more serious than anything that we’ve ever seen in our lifetime and it’s really the purpose of having the articles of impeachment in the Constitution,” Manchin said.
Sen. Roger Wicker, a Mississippi Republican, argued things were too far along in the process to consider censure, given that the House has already impeached Trump.
“I appreciate their thinking outside the box. We’re past that point,” Wicker said.
Thune told reporters that a censure proposal was “so hypothetical at this point.”
“The Democrats are very intent on going through the impeachment process,” Thune said. “That’s the vote that matters to them.”
This story has been updated with additional developments Wednesday.