WASHINGTON – Senate Republicans met on Tuesday against former President Donald J. Trump’s trial for “inciting insurrection” on Capitol Hill, with only five members of his party joining the Democrats in a vote to move forward with their impeachment trial.
By a 55-45 vote, the Senate narrowly eliminated a Republican attempt to dismiss the process as unconstitutional because Trump is no longer in office. But the numbers showed that loyal Republicans were again ready to spare him the sentence, this time despite his role in inciting a crowd that violently targeted lawmakers and the vice president on January 6, when Congress met to finalize the election.
“I think it’s pretty obvious from today’s vote that it is extraordinarily unlikely that the president will be convicted,” said Senator Susan Collins of Maine, one of five Republicans who voted to proceed with the trial. “Just do the math.”
It would take two-thirds of the senators – 67 votes – to reach a conviction, meaning that 17 Republicans would have to cross party lines to side with Democrats to plead Trump guilty. If they did, an additional vote to disqualify him from taking office again would require a simple majority.
In addition to Collins, the only Republicans who joined the Democrats in the vote to reject the constitutional objection and move on were Senators Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania. All five had said previously that they were open to hear the Chamber’s impeachment case, which was adopted in a bipartisan vote a week after the attack.
With the facts of the case still spreading and the meat of the trial delayed by two weeks, senators can change their minds. Several Republicans who voted on Tuesday to support the constitutional challenge, which would effectively kill the trial, later ran to clarify that they remained open-minded about the trial, which will meet on February 9.
In the weeks since the attack, Trump has not apologized for his actions, including spreading falsehoods about electoral fraud and urging his supporters gathered in front of the White House on January 6 to march to the Capitol, confront members of Congress who would formalize his election loss and “Fight like hell”.
But most agreed that any window of possibility for Trump’s bipartisan condemnation by lawmakers who were evacuated from the Capitol in the midst of the deadly attack was closing rapidly, as Republicans were reminded once again of Trump’s remarkable control over your party and the risks of crossing it. The 10 House Republicans who broke with their party to support the impeachment charge are already facing an intense reaction, both at home and in Washington.
It seemed that Senator Mitch McConnell of Kentucky, the Republican leader, was among those who made such a calculation. He had signaled twice in the past few days – through advisers and then in a letter to colleagues – that he was open to condemning a former president he particularly despised, and publicly stated last week that Trump had “provoked” the mob .
But if McConnell was trying to smooth the ground for a faction of Republicans to abandon Trump and throw him out of the party, it became increasingly clear that this coalition was not emerging.
When his fellow Kentucky senator Rand Paul raised a constitutional objection to the process, minutes after the Senate met as an impeachment court, McConnell voted with the vast majority of his conference in favor of the challenge.
It seemed to be a recognition that the Republicans were not so eager to leave Trump, either out of fear of his promises of retaliation and his overwhelming popularity with the party’s main supporters, or because they believed the fight was simply not worth having.
Democrats feared something more conspiratorial, pointing out that it was McConnell who, as the majority leader, refused Democrats’ pleas to start the impeachment trial two weeks ago, when Trump was still president. On Tuesday, the Republican leader turned and supported Paul’s argument that trying a former president was unconstitutional.
McConnell made no public comment on his views on the vote, nor did he speak out on the matter during a private Republican lunch, according to people familiar with the session.
The confrontation caught many senators off guard on a day that they hoped would be largely dedicated to the carefully planned ceremony and the logistics of a trial.
Senator Patrick J. Leahy, a Democrat from Vermont and president pro tempore of the Senate, was sworn in as president and asked all 100 senators to take an oath to administer “fair justice” during the trial. The senators were warned by the sergeant-at-arms “under penalty of imprisonment” to remain silent.
It was then that Mr. Paul, an outspoken advocate for Mr. Trump, presented his formal objection.
“Private citizens are not impeached,” Paul said shortly before, calling the trial “crazy” and vindictive. “Impeachment is for removal from office, and the accused here has already stepped down.”
Senator Chuck Schumer, a New York Democrat and majority leader, quickly moved to end the request.
“The theory that the impeachment of a former employee is unconstitutional is totally wrong in every analysis,” said Schumer. “It was completely unmasked by constitutional academics from across the political spectrum.”
The Senate has clearly taken this position in the past. In 1876, when the House was preparing to challenge him on corruption charges, William Belknap, Ulysses S. Grant’s secretary of war, rushed to the White House, where he submitted his resignation to tears before Congress could act. The Chamber proceeded anyway, and when the case reached the Senate, the majority of the body decided that it maintained jurisdiction to hear it, despite Belknap’s departure from office.
Support for a constitutional argument against the trial has grown in the Senate in recent days, especially among Republicans who have shown little interest in mounting any substantive defense of Trump’s conduct. But the overwhelming level of Republican support has exceeded what almost everyone expected.
Mr. Paul declared victory, saying, “Forty-five votes means the impeachment trial is dead on arrival.”
Murkowski, who praised the House’s impeachment and called Trump’s actions “illegal”, reluctantly agreed. She told reporters that she feared it would be impossible for most of her Republican colleagues to actually consider supporting a conviction after they registered, arguing that the trial shouldn’t even take place.
“That’s why I found it a little unfortunate to have such a spontaneous vote on an extraordinarily significant issue without thoughtful debate and analysis,” she said. “People had to make really quick decisions.”
But other Republicans said their votes to support Paul’s objection should not be read in opposition to hearing the case against Trump.
Senator Rob Portman of Ohio said he voted with Paul because he wanted an “exhaustive discussion” on the issue of constitutionality, not necessarily to end the trial.
“I haven’t decided yet,” he said. “I’m a juror.”
He and Senator John Thune of South Dakota, the Republican whip, suggested that McConnell might feel the same way.
“I don’t think it compromises anyone after the trial starts,” said Thune.
Far from resolved, the discussion of constitutionality will reappear when the trial meets again in February, when senators may try to use it as a justification for voting for absolution. House administrators have already started preparing a constitutional justification for the lawsuit, and Trump’s lawyers will be asked to argue the opposite as a key element of their defense.
The debate arises from the fact that the Constitution does not explicitly discuss the impeachment of former employees or instructs Congress on how to handle a case like Trump’s, in which the president was impeached while still in office, but was only taken to judgment after the end of his term.
Senate Republicans have adopted a legal theory that argues that the document’s silence means that the Senate has no authority to try former officials at all, even though the first phase of the process, impeachment, occurred before he left.
Just before the vote, McConnell invited Jonathan Turley, a professor of law at George Washington University, to speak about the constitutional debate at the regularly scheduled Republican lunch. Turley took a more subtle stance than some who argue that judging a former employee is strictly unconstitutional. He argues, instead, that it is “constitutionally incorrect” to proceed and could set a dangerous precedent for which a Congress of one party could accuse and punish the leaders of another on a whim.
But other leading constitutional scholars say that view is backward, and the judgment of a former official – especially one who has just left office – is entirely consistent with the authors’ intentions to hold public officials accountable. Otherwise, they argue, the authorities could routinely commit crimes and misdemeanors in their last weeks and months in office, confident that they would avoid punishment.
“If an employee could only be disqualified while still in office, an employee who betrayed public trust and was impeached could avoid liability by simply resigning a minute before the Senate’s final conviction vote,” a group of 150 prominent lawyers, including a founder of the conservative Federalist Society, wrote last week. “The authors did not plan the checks and balances of the Constitution to be undermined so easily. History supports a reading of the Constitution that allows Congress to challenge, judge, condemn and disqualify former officers ”.
Emily Cochrane and Katie Benner contributed reports.