Senate blocks constitutional challenge to Trump impeachment trial

Senate Majority Leader Chuck Schumer (D-NY) speaks to the media along with Senators Debbie Stabenow (D-MI) and Patty Murray (D-WA) during a news conference
Senate Majority Leader Chuck Schumer (D-NY) speaks to the media along with Senators Debbie Stabenow (D-MI) and Patty Murray (D-WA) during a news conference in the U.S. Capitol in Washington, on Jan. 26.

By David Morgan

The U.S. Senate voted 55-45 on Tuesday to block a Republican effort to upend plans for former President Donald Trump’s impeachment trial on a charge that he incited the deadly Jan. 6 assault on the U.S. Capitol.

In an early test of the Senate’s impeachment drive, five Republicans joined Democrats to reject a motion by Republican Senator Rand Paul that would have required the chamber to vote on whether the trial violates the U.S. Constitution.

Paul and other Republicans contend that the proceedings are unconstitutional because Trump left office last Wednesday and the trial will be overseen by Democratic Senator Patrick Leahy instead of U.S. Chief Justice John Roberts.

“This proceeding, which would try a private citizen and not a president, vice president or civil officer, violates the Constitution,” Paul told his fellow senators after they had been sworn in as jurors for the trial set to begin on Feb. 9.

Democratic Senate Majority Leader Chuck Schumer dismissed Paul’s argument as “flat-out wrong” and “a constitutional get-out-of-jail-free card” for presidents guilty of misconduct.

Most of the Senate’s 50 Republican lawmakers voted against a motion by Schumer to kill Paul’s proposal.

U.S. Senate Minority Leader Mitch McConnell (R-KY) arrives at his office on Jan. 26.REUTERS/Al Drago

Paul had predicted that support for his move would show the Senate incapable of convicting Trump, which would require 67 votes. But some Republicans described Tuesday’s vote and the question of Trump’s guilt as separate matters.

There is a debate among scholars over whether the Senate can hold a trial for Trump now that he has left office. Many experts have said “late impeachment” is constitutional, arguing that presidents who engage in misconduct late in their terms should not be immune from the very process set out in the Constitution for holding them accountable.

The Constitution makes clear that impeachment proceedings can result in disqualification from holding office in the future, so there is still an active issue for the Senate to resolve, those scholars have said.

Fellow Republican Senator Lisa 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 recognizing that impeachment is not solely about removing a president, it is also a matter of political consequence,” Murkowski told reporters on Tuesday.

Murkowski joined fellow Republican Senators Mitt Romney, Susan Collins, Ben Sasse and Patrick Toomey in opposing Paul.

Trump is the only president to have been impeached by the House of Representatives twice and the first to face a trial after leaving power, with the possibility of being disqualified from future public office if convicted by two-thirds of the Senate.

U.S. Senator Rob Portman (R-OH) arrives for a vote in the basement of the Capitol on Jan. 26.REUTERS/Al Drago

The House approved a single article of impeachment – the equivalent of an indictment in a criminal trial – on Jan. 13, accusing him of inciting an insurrection with an incendiary speech to supporters before they stormed the Capitol on Jan. 6. A police officer and four others died in the melee.

At least 17 Republicans would need to join all 50 Democrats in the evenly divided Senate for Trump to be convicted, a two-thirds threshold that appears unlikely to be reached. Trump remains a powerful force among Republicans and his supporters have vowed to mount election challenges to lawmakers in the party who support conviction.

Some Republicans have criticized Trump’s false claims of voting fraud and his failed efforts to overturn President Joe Biden’s Nov. 3 election victory. But no Senate Republicans have said definitively that they plan to vote to convict him.

Although the Constitution calls on the chief justice to preside over presidential impeachment trials, a senator presides when the impeached is not the current president, a Senate source said. First elected to the chamber in 1974, Leahy, 80, is the most senior Democrat in the chamber and holds the title of Senate president pro tempore.

The nine House Democrats who will serve as prosecutors set the trial in motion on Monday by delivering the article of impeachment to the Senate.