“Our members, regardless of what they might think about the merits, just believe that this is an exercise that is not really constitutionally based and, from a practical point of view, it just doesn’t make sense,” said Thune.
But critics – including academics from the conservative Federalist Society and other right-wing organizations – say the argument is weak on legal grounds. In addition, federal courts have consistently submitted to Congress the “sole power” of establishing their own rules and procedures, including impeachment procedures.
Still, Republican restraint is becoming a central theme of the former president’s defense strategy at the Senate trial, with several Republican senators echoing publicly in recent days, while signaling greater hostility towards Trump over the attack on the Capitol.
“I think the key point is: it is constitutional to do this when someone is out of office – and then, it is purely retribution when you try to push them forward,” said Sen. Mike Braun (R-Ind.). “[That’s] do not dismiss any of the enormity of the day itself. “
“I think it’s one of the most powerful arguments [for Trump], for sure, ”added Senator Lindsey Graham (RS.C.), an important Trump ally who has been pushing for a vote on the trial’s rejection at the start.
In fact, the Senate never brought a former president to trial on charges of impeachment, although in 1876 the Senate tried former War Secretary William Belknap after he had already resigned. Supporters of the Senate’s authority to try a former official pointed to the Belknap trial to emphasize that a president or anyone else subject to impeachment could simply resign or step down from punishment.
“If an employee could only be disqualified while still in office, an employee who betrayed public trust and suffered impeachment could avoid liability by simply resigning a minute before the Senate’s final condemnation vote,” a bipartisan group of lawyers, including conservatives prominent, he wrote on Thursday.
Senate majority leader Chuck Schumer (DN.Y.) and minority leader Mitch McConnell (R-Ky.) Have yet to define a framework that will outline the rules and procedures of the trial. McConnell also proposed delaying the start of the trial by two weeks to allow Trump to prepare his defense strategy, although it is unclear whether Schumer will agree.
The framework will define whether to allow a motion to reject the trial early – a vote that could signal the likelihood that the Senate will condemn Trump. Seventeen Republicans would need to join all Democrats in order for Trump to be convicted. Some senators said they are considering supporting such a motion, if it is presented, as a way of expressing their objections to putting a former president on trial.
“I don’t think that, once a person leaves office, that impeachment is available. I think it’s a debatable issue at that point, ”said Sen. Mike Rounds (RS.D.). “Constitutionally, it is the wrong thing to do.”
In that case, as Republicans note, there is no office from which to remove Trump, although condemning him could lead to other punishments, such as preventing him from seeking a federal office in the future.
“Let voters decide whether they want President Trump to run again,” said Sen. Ron Johnson (R-Wis.). “There is nothing I see in the Constitution that would allow a president to be impeached after he has left office.”
Johnson said he would vote “definitively” to reject the trial, adding that the House impeachment article “shouldn’t even be sent here”. The transmission of the Chamber’s article to the Senate triggers the start of the trial.
But Democrats, who now control the Senate, plan to hold a trial, although spokeswoman Nancy Pelosi has yet to formally transmit the impeachment article to the other side of the Capitol. Schumer stated this after Trump’s impeachment by the House last week, although Democrats have not yet decided how long the trial should take, which will be dictated by the decision to call witnesses as part of the process.
The main legislators of both parties, however, are predicting a relatively short trial. Trump’s first impeachment trial lasted three weeks, but that was only after a multi-week impeachment investigation in the House, which yielded hundreds of pages of evidence and legal arguments. Deputy Jamie Raskin (D-Md.), The House’s top impeachment manager, said on Thursday that the next trial will not last as long as the previous one.
This is partly because, this time, the House did not conduct a formal investigation, and several senators said that calling witnesses is not necessary because lawmakers were all witnesses to the Capitol siege and because Trump’s actions and statements were fully displayed to the public. .
“We don’t need a lot of information about the merits of the case,” said Braun. “We were here.”
“I think the public record is your television screen,” Graham joked. “I don’t see why it would take so long.”
In addition to constitutional arguments, Republicans are questioning why Democrats want to put Trump on trial, while President Joe Biden emphasizes unity and bipartisanship, noting that an impeachment trial is among the most controversial ventures on Capitol Hill.
“I also don’t know why it helps Dems. I know there is a terrible dislike for the ex-president. But they have a new life, ”said Thune. “They have the White House, they have a majority in the Senate. They have a lot of things they want to do. They want to redo the last four years, and it doesn’t seem to make much sense. “
Republicans have been urging Biden to interrupt or prevent the Senate trial, claiming that this will delay consideration of those nominated by the Biden Cabinet, as well as its legislative agenda, which includes another round of relief from Covid-19.
“It will be incredibly divisive for the country if we go through this,” said Senator Marco Rubio (R-Florida). “We are in the middle of a massive pandemic. We have all these indications that we need to make. We have all of these threats around the world that we need to focus on. There is much to be done. The notion that we are going to spend a week or two in a trial for someone who is not even in office – seems like a waste of time ”.
Pelosi resisted this restraint on Thursday, saying bluntly: “The President of the United States committed an act of inciting insurrection. I don’t think it’s very unifying to say, ‘Oh, let’s just forget about it and move on.’ This is not how you unify. “
Burgess Everett contributed to this report.