Senators will be sworn in for the second impeachment trial of former President Donald Trump on Tuesday amid an immediate challenge to the constitutionality of the trial from a Republican ally of the former President.
Sen. Rand Paul of Kentucky said he would force a procedural vote on the trial on Tuesday afternoon, in what will amount to the first test of how Senate Republicans view the upcoming trial, which will start in earnest the week of February 8. Several Republican leaders said Tuesday they planned to vote with Paul that the trial was not constitutional because Trump is no longer President, in what’s become the most common argument from Republicans to acquit Trump.
The Kentucky Republican said Tuesday that he was forcing it to show there already aren’t sufficient votes to convict Trump, which would require two-thirds of senators.
“I think there will be enough support on it to show there’s no chance they can impeach the president. If 34 people support my resolution that this is an unconstitutional proceeding, it shows they don’t have the votes and we’re basically wasting our time,” Paul told reporters.
Still, while the test vote is likely to be defeated, it will provide more clues about how many Republicans are open to voting to convict Trump, even if that number is short of the 17 necessary for the two-thirds needed to convict and bar him from running for office again. Several Republicans said they were surprised they’d already be taking a vote on the constitutionality, as the question is something that both the House impeachment managers and Trump’s legal team are likely to address in their presentations next month.
Senate Minority Leader Mitch McConnell has said he’s going into the trial with an open mind. Sen. Roy Blunt of Missouri, a member of GOP leadership, would not say Tuesday he would vote on Paul’s motion, while Sens. John Cornyn of Texas and John Barrasso of Wyoming said they would vote with Paul.
Republicans focus on constitutionality question
Senate Republicans are hosting conservative legal scholar Jonathan Turley at their party lunch on Tuesday, according to a source familiar with the matter. Turley is one of the lead scholars arguing that impeaching Trump when he is out of office is unconstitutional.
Turley has written extensively in recent days about his belief that while reasonable people can disagree about whether or not it is constitutional to hold an impeachment trial for a former President, he wrote recently on his blog, “even if the Senate does not view this as extraconstitutional, it should view this trial as Constitutionally unsound.”
Given the limited language in the Constitution on impeachment, legal experts disagree about whether the Senate can convict a former president. But Democrats have pointed to legal scholars on both ends of the political spectrum who say a trial is constitutional, because the Senate has held trials previously for former officials.
Several Senate Republicans say they agree it’s constitutional, including Sen. Mitt Romney of Utah and Lisa Murkowski of Alaska, who said her review “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.”
Sen. Thom Tillis, a North Carolina Republican who just won reelection, said Tuesday, “I think there’s probably a constitutional basis for it.”
“I have more problem with the process and the expedited nature of it,” he added.
Several Republicans have pointed to the fact that Chief Justice John Roberts will not be presiding over the trial, while the Constitution says the chief justice should preside for the trial of a president.
“That would send a pretty clear signal to me what Roberts thinks of the whole thing,” said Sen. Chuck Grassley, an Iowa Republican, who declined to say how he would vote on Paul’s motion.
House managers prepare their case
On Monday, the House impeachment managers, a group of Democratic lawmakers who will act as prosecutors presenting the case against Trump during the trial, delivered the single article of impeachment to the Senate. The article, approved by the Democrat-led House, charges Trump with incitement of insurrection for provoking the attack on the US Capitol that left multiple people dead.
The two-week break until the trial begins will give both sides more time to prepare for the trial. Trump is still hiring lawyers for his impeachment legal defense team, which is being led by South Carolina lawyer Butch Bowers.
As the House impeachment managers put together their plans for the trial, they are considering using a variety of video evidence to show how the rioters were responding to Trump’s own words when they breached the Capitol, according to sources familiar with the deliberations.
The impeachment managers are still wading through the huge amount of video that exists from January 6 to determine what they should use at the trial, the sources said, including video posted to the conservative social media site Parler. The House’s impeachment team has taken an interest in a 10-minute video compilation from the national security forum Just Security, which uses social media posts from rioters on Facebook and Parler to illustrate how they were reacting in real-time to Trump’s comments at the January 6 rally as well as Trump’s social media posts when they attacked the Capitol.
No decisions have been finalized about how to use the video. The Washington Post first reported on the impeachment managers’ interest in the Just Security clip.
At the first Trump impeachment trial, House impeachment managers also used video to bolster their case that Trump had pushed for Ukraine’s help to investigate his political opponent, Joe Biden. The use of video for the upcoming trial is even more compelling given the disturbing images and video that have emerged of rioters ransacking the Capitol and attacking police officers.
The transmission of the article typically triggers a quick start to an impeachment trial, but Senate Majority Leader Chuck Schumer and McConnell reached a deal last week to push back the start date for the substance of the proceedings. That move will give Democrats more time to confirm Biden’s Cabinet and potentially take up a new Covid-19 relief bill while Trump’s defense team will have more time to prepare for trial.
It remains to be seen how long the trial will last, whether the House impeachment managers will seek witnesses and what the exact contours of the President’s legal defense will be.
When the trial gets underway, one visible difference between the proceedings and Trump’s first impeachment trial will be that instead of Roberts, the president pro tempore of the Senate Patrick Leahy of Vermont will preside.
It would take a two-thirds vote in the Senate to convict Trump, a high bar to clear that looks increasingly unlikely to happen as a number of Senate Republicans are already arguing that it’s illogical and may be unconstitutional to impeach a former president.
Under the agreement reached by Schumer and McConnell, several ceremonial functions of the trial will take place this week. On Tuesday, the Senate is also expected to issue a summons to Trump, another step in the process of organizing for the trial to kick into high gear.
Then the trial will effectively be put on hold as the impeachment managers and Trump’s legal team exchange pre-trial briefs for two weeks. The final briefs would be due on February 9, allowing the trial to begin in earnest.
This story has been updated with additional developments Tuesday.