Senate Republicans could face a key test this afternoon that would show whether there is any chance of convicting former President Donald Trump on an article of impeachment and bar him form holding office again.
Senator Rand Paul is expected to try to force a vote to dismiss the case, making an argument adopted by many Republicans that a trial of an ex-president would be unconstitutional. Democrats could move to table it, but it will still provide an early proxy on where GOP senators stand.
“There will be a vote today on the floor of the Senate in terms of whether this should even move forward,” Senator John Barrasso, the No. 3 Republican, said Tuesday on “The Hugh Hewitt Show.”
The question has never been tested in the courts, but many legal scholars and a sparse but consistent line of lower-level impeachments in the past suggests the Senate retains power to put him on trial even after his term ends. Still, the argument could give Republicans a chance to avoid having to cast judgment on Trump’s Jan. 6 actions, when he encouraged a crowd that went on to storm the Capitol. The ensuing riot left five people dead, including a police officer.
Unless 17 Republicans vote against dismissing the case, there would be little, if any, expectation of a conviction once the trial is under way. It will take support from 67 senators to convict the former president.
A notice to senators from Senate Majority Whip Dick Durbin said that Paul could attempt to bring up his “point of order” shortly after senators are sworn in as jurors in Trump’s impeachment trial at 2:30 p.m. An aide to Durbin said it could be tabled.
Speaking on the Senate floor, Paul called the proceedings a “sham of an impeachment,” and insisted that Trump called on protesters to peacefully march on the Capitol.
“Are we going to put every politician in jail?” he asked.
A number of other GOP senators also have questioned whether Trump can be tried, suggesting a growing number could align to acquit him on that basis. Senators stating that view include Joni Ernst of Iowa, Roger Wicker of Mississippi and Mike Braun of Indiana.
Senator John Cornyn said he would likely support Paul’s position, but that party leadership was not taking a stand. “It’s a vote of conscience,” he told reporters.
But other Republicans, including Mitt Romney of Utah and Lisa Murkowski of Alaska, have said they believe Trump’s trial is in line with the Constitution.
“My review of it has led me to conclude that it is constitutional, in recognizing that impeachment is not solely about removing a president,” Murkowski told reporters. “It is also a matter of political consequence.”
Barrasso said that Jonathan Turley, a George Washington University professor who has taken the position that you can’t try a president out of power, will speak on a caucus call with all GOP senators immediately before the swearing in. Minority leader Mitch McConnell, who hasn’t said yet whether he would convict or acquit Trump, leads those calls.
Legal experts disagree on the matter, and Senate Majority Leader Chuck Schumer on Monday dismissed arguments that the Constitution bars the Senate from trying a former president, calling it a “fringe legal theory.” He cited the research of numerous legal scholars and a precedent from 1876 when an impeachment trial was held for the secretary of war under President Ulysses S. Grant even though he had resigned to avoid the proceedings.
“It makes no sense whatsoever that a president or any official could commit a heinous crime against our country and then defeat Congress’ impeachment powers by simply resigning,” Schumer said on the Senate floor.
The House voted to impeach Trump on Jan. 13, with 10 Republicans joining all 222 Democrats in favor. The single article charges Trump with inciting the crowd of his supporters that rioted at the Capitol, leaving five people dead and disrupting the certification of President Joe Biden’s victory in the November election.
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