Senate Republicans Take an Early Off-Ramp on Impeachment

S hortly before senators were sworn in for Donald Trump’s second impeachment trial (the fourth such trial in history), Kentucky senator Rand Paul spoke to reporters about his effort to dismiss the trial on the grounds that it is unconstitutional to impeach a former president.

“If more than 34 Republicans vote against the constitutionality of the proceeding, the whole thing is dead on arrival. Doesn’t matter what they can do,” Paul said on Tuesday. “They probably should rest their case and present no case at all.”

Paul got more than a third of the Senate necessary to thwart Trump’s conviction. Forty-five Republicans voted against Majority Leader Chuck Schumer’s motion to table Paul’s constitutional point of order, but not all 45 Republicans agreed with Paul on the constitutional question. One of the 45 Republicans, Ohio’s Rob Portman, said he voted “no” because he wanted to hear a debate on Paul’s motion, not because he had reached the same conclusion as Paul. Portman said Minority Leader McConnell had a similar view, but McConnell himself hasn’t made clear his own view on the constitutionality of the trial.

McConnell said during January 19 remarks on the Senate floor that the mob that attacked the Capitol on January 6 “was fed lies. They were provoked by the president and other powerful people.” But on Tuesday, McConnell invited law professor Jonathan Turley to speak at the GOP Senate lunch. Turley is currently an advocate of the theory that a president cannot be impeached or convicted after he has left office. (Turley used to hold the opposite view: “impeachments historically had extended to former officials, such as Warren Hastings,” he wrote in a 1999 law review article.) McConnell told a CNN reporter on Wednesday: “The trial hasn’t started yet. And I intend to participate in that and listen to the evidence.”

Susan Collins, one of the five Republican senators who voted to table Rand Paul’s motion, was right when she summed up the meaning of the vote on Tuesday. “I think it’s pretty obvious from the vote today, that it is extraordinarily unlikely that the president will be convicted,” Collins said. “Just do the math.”

The four GOP senators who joined Collins were Ben Sasse of Nebraska, Pat Toomey of Pennsylvania, Mitt Romney of Utah, and Lisa Murkowski of Alaska.

“Senator Sasse doesn’t think there’d be any question how Republicans would approach this if we were talking about a Democratic president,” Sasse’s spokesman James Wegmann told National Review in an email. “As an originalist who is proud of the work the Senate did over the last four years to put constitutionalists on the federal bench, he doesn’t think the point of order’s blanket assertion was backed up by either the text of the constitution or the history of impeachment during the founding. It was a convenient off-ramp, but a weak constitutional argument.”

The constitutionality of impeaching and convicting former presidents is a matter of genuine dispute, but most scholars agree that former presidents can be impeached. (See National Review’s Dan McLaughlin: “Trump Can Still Be Impeached after He Leaves Office.”) But it’s likely that a lot of Republicans did indeed view Paul’s constitutional argument as a convenient off-ramp that spares them from the wrath of Trump’s staunchest supporters.

By taking that off-ramp, most Senate Republicans are setting a precedent that would  effectively strip Congress of its constitutional authority to disqualify any impeached federal official from holding future office.

Say the House impeaches a president in the middle of his first term and that president faces a 100–0 conviction vote in the Senate. Under the theory embraced by most Senate Republicans, that president could resign shortly before the Senate votes and be spared the stain of conviction and the penalty of disqualification. That same principle would apply to other federal officials (including cabinet members and federal judges) facing impeachment.

Of course, votes on impeachment, conviction, and disqualification are few and far between. The more obvious consequence of the Senate GOP’s decision is that they have effectively chosen to retain Donald Trump as the 2024 GOP presidential front-runner.

Maybe Trump will decide not to run. He would be 78 in 2024. But that’s the same age as Joe Biden right now. And even after the Capitol riot, Donald Trump is the most popular Republican in the field.

Even if the Senate had the authority to convict Trump, Florida senator Marco Rubio said on Fox News Sunday it would be “arrogant” for the Senate to disqualify Trump from holding future office: “Voters get to decide that. Who are we to tell voters who they can vote for in the future?”

To answer Rubio’s question: They are senators declining to use their constitutional authority to impose a penalty on an impeached president. Trump is the first president in history who refused to accept the results of the Electoral College. If Trump hadn’t lied for two months about a “landslide” victory being stolen from him and his voters — or if he had simply accepted the Electoral College vote on December 14 — Congress would not have been attacked on January 6. Police officer Brian Sicknick would be alive today.

For those reasons, a Trump 2024 presidential nomination—the candidacy itself—presents a danger almost no other candidacy would. If Trump is the GOP nominee in 2024 and loses, there’s every reason to think that he would refuse to concede again and that the madness of the last two months would repeat itself — only with greater intensity. Senate Republicans will have their excuses for their decisions today, but if history repeats itself in 2024, they won’t be able to say it was impossible to foresee what would happen when they freely chose not to convict and disqualify Trump.