Conservative constitutional scholar Jonathan Turley and Senator Rand Paul have spent the last two weeks building the rhetorical off-ramp for any senator grappling with the consequences of convicting Donald Trump at his upcoming impeachment trial.
Senate Minority Leader Mitch McConnell of Kentucky and 44 other Republicans voted in support of Mr Paul’s point of order on Tuesday to dismiss the trial for which they had just been sworn in as jurors, claiming it defies the US Constitution to convict an impeached president who no longer holds office.
(The House impeached Mr Trump on 13 January, a week before he was replaced by Joe Biden on 20 January.)
Just five Republican senators – Mitt Romney of Utah, Ben Sasse of Nebraska, Susan Collins of Maine, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania – voted with the Democratic majority to table Mr Paul’s measure, 55-45, and let the trial proceed.
At least 17 Republicans must vote with all 50 Democrats (including Democratic-caucusing Independent Senators Bernie Sanders of Vermont and Angus King of Maine) in order to convict Mr Trump and prevent him from holding federally elected office again in the future.
Conviction appears increasingly remote since it would require support from at least 12 GOP senators who are now on record as fundamentally opposed to the impeachment trial itself.
Mr Paul and the Senate GOP brass have been hinting at Tuesday’s gambit for weeks.
At their weekly lunch just hours earlier, they hosted Mr Turley, the conservative constitutional law professor at George Washington University who gained national prominence for his opposition to Mr Trump’s first impeachment, to lay out his case against this new trial.
In a recent op-ed for Fox News, Mr Turley explained his thinking: “On its face, the planned impeachment trial is at odds with the language of the Constitution, which expressly states that removal of a president is the primary purpose of such a trial. … At the time, Trump will be neither a president nor in office. He will be a citizen and would be best served legally to forgo the trial entirely as extraconstitutional and invalid.”
Democrats and scores of neutral legal observers have been quick to scorn Mr Turley’s view as diametrically at odds with his own previously expressed opinions about post-service impeachment trials.
In an essay for the Duke Law Journal in 1999, Mr Turley concluded the Senate was “correct in its view that impeachments had extended to former officials” when it voted in 1876 to proceed with a trial for ex-Secretary of War William Belknap, who had resigned his post a day before being impeached by the House in a failed attempt to flee ignominy.
The Senate ultimately did not clear the two-thirds threshold to convict Mr Belknap.
“Regardless of the outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government,” Mr Turley wrote in 1999. “Absent such a trial, Belknap’s rush to resign would have succeeded in barring any corrective political action to counter the damage to the system caused by his conduct.”
In addition to Mr Turley’s flip-flopping, Democrats have highlighted a letter from 150 legal scholars — including the co-founder of the conservative Federalist Society that has produced dozens of GOP-appointed federal judges — affirming the constitutionality of a post-service impeachment trial for Mr Trump.
That letter, published in Politico last week, states: “If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined. History supports a reading of the Constitution that allows Congress to impeach, try, convict, and disqualify former officers.”
Republicans falling in line
Introducing his doomed point of order on Tuesday, Mr Paul went further than most of his Republican colleagues by actually defending Mr Trump from the substance of the core accusation against him — that he had incited the insurrection at the Capitol on 6 January by exhorting his followers to “fight” for their country after months of shovelling lies and conspiracy theories at them about a “stolen election.”
Mr Paul claimed Democrats were “deranged by their hatred” of Mr Trump.
“If we are going to put every politician in jail, are we going to impeach every politician who has used the words 'fight' figuratively in a speech? Shame,” said the junior Republican senator from Kentucky.
While Mr McConnell has publicly pinned blame on Mr Trump for inciting the bloody insurrection at the US Capitol on 6 January, the Republican leader’s vote on Tuesday strongly indicates he will ultimately acquit the former president on the dubious procedural grounds outlined above.
The Republican leader’s relationship with Mr Trump is reportedly in the gutter. The two have not spoken since mid-December.
Just within the last couple of weeks — even the last couple of days — Mr McConnell’s aides and confidants were leaking to reporters that their boss viewed convicting Mr Trump as a decisive way to diminish the former president’s malign influence in the GOP.
As recently as seven days ago, Mr McConnell took to the Senate floor to say the pro-Trump “mob was fed lies” about supposed election fraud.
“They were provoked by the president and other powerful people, and they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like,” Mr McConnell said, alluding to the fact that Congress was in the middle of certifying Mr Biden’s electoral victory when rioters steamrolled the US Capitol Police and ransacked the legislature on 6 January.
Mr McConnell’s and other GOP senators’ votes to dismiss the impeachment trial does not necessarily spell doom for the House impeachment managers’ prosecution of Mr Trump.
Republican Senator Rob Portman of Ohio, who voted in favour of scrapping the trial on Tuesday, nevertheless indicated to NBC he was still open to convicting Mr Trump.
“I've not I've not made my mind up — I’m a juror,” Mr Portman said.
The nine House Democratic impeachment managers are hopeful that Mr McConnell and at least 16 other Republicans will dispense with their suspiciously grounded procedural complaints about the impeachment trial and conclude Mr Trump’s guilt is overwhelming, his actions too harmful to go unpunished.
“As the days go on, more and more evidence comes out about the president's involvement in the incitement of this insurrection, the incitement of this riot, and also his dereliction of duty once it was going on,” impeachment manager Joaquin Castro of Texas told NPR last weekend.
Untold quantities of digital ink were spilled at Mr Trump’s first Senate impeachment trial describing the tedium senators endured sitting through the arguments from both sides, not allowed to look at their phones or converse with one another.
If they’ll just sit still and listen, which dozens, including Mr McConnell, have promised to do, Mr Castro and his colleagues are bullish on the chances they can win over more than just the five Republicans who voted to move forward with the trial on Tuesday.
“Most of all, at the end of the day, what we need is for people to put country over person — in other words, over Donald Trump — and also country over party, Republican or Democrat,” Mr Castro said.
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