WASHINGTON — The Senate rejected Sen. Rand Paul’s attempt to toss out Donald Trump’s second impeachment as unconstitutional Tuesday, but the gambit showed that Republicans are still overwhelmingly standing behind Trump even after he left office and are likely to acquit him.
Paul forced a vote arguing that Trump’s second impeachment trial is unconstitutional because he is no longer in office. Every Democrat voted against Paul, but they were joined by only five of 50 Republican senators — Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey. The 55–45 vote means Trump’s impeachment trial will go ahead.
Though Paul’s attempt failed, he succeeded in showing that there are more than enough Republicans loyal to Trump to acquit him in the trial. Before the vote, Paul correctly predicted that north of 40 Republicans would object to the trial. He said this demonstrates that the push to impeach Trump is “dead on arrival.”
It requires a two-thirds vote in the Senate to convict Trump of high crimes and misdemeanors for inciting a mob to storm the Capitol, meaning just 34 votes are enough to acquit. Democrats had hoped to get enough Republican support to convict Trump and then prevent him from running for office again with a simple majority vote. Nine out of ten Republican senators are now on record as saying the trial is unconstitutional. In theory, some could change their votes after hearing the case against Trump, but that would mean voting to convict in a trial that they already tried to toss out as illegitimate.
The vote shows the massive hold Trump still has over the Republican establishment, even after leaving the White House. Trump has no reluctance to try to destroy his intra-party critics, regularly calling for his supporters to launch primary challenges against his Republican opponents and vote them out of office.
Just moments before the vote Mitch McConnell, the head Republican in the Senate, would not say whether he believes Trump committed impeachable offenses by denying the election results and urging his supporters to “fight like hell” to overturn them. He then voted in support of Paul’s point of order.
Paul’s pitch that Trump’s impeachment is unconstitutional rested largely on semantics. Nowhere in the Constitution does it say a former president cannot be impeached. Instead, Paul argued that because the Constitution refers to “the president”, Congress’s impeachment powers only refer to the sitting president. (Trump was impeached by the House while still in office).
“If the accused is no longer president, where is the constitutional power to impeach him? Private citizens don’t get impeached,” Paul said on the Senate floor.
Constitutional scholars have largely dismissed his interpretation and there is historical precedent working against him. In 1876, War Secretary William Belknap attempted to head off a House vote on whether to impeach him for corruption by handing in his resignation just moments before the vote. The House voted to impeach him anyway and the Senate took up the trial, despite him being out of office. He ended up being narrowly acquitted.
Senate Majority Leader Chuck Schumer said Paul’s interpretation defies both historical context and “basic common sense.” He said it would give presidents a “constitutional get out of jail free card” allowing them to commit crimes just before leaving office without suffering consequences.
When reporters asked Paul about his interpretation of the Constitution giving presidents a blank check at the end of their term, he said that reputational damage would keep them in check. “I think that people are always judged based on their actions and there is probably a penalty that is being paid,” said Paul.
Republican Sen. Ron Johnson went even further than Paul, urging senators to declare Trump’s impeachment unconstitutional whether or not that is true.
Johnson said he was personally conflicted about whether Congress has the power to impeach a former president, saying “there are good arguments on both sides.” He said senators should consider questions such as “will it heal, will it unify” when voting.
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