Senators were sworn in Tuesday as jurors in the impeachment trial of former President Donald Trump and then immediately took a test vote that signaled an acquittal.
Sen. Rand Paul, Kentucky Republican, raised a constitutional challenge to the trial. He argued that the founding document does not envision a trial for a president who is no longer in office.
He lost a test vote, 55-45, but those 45 pro-Trump votes would be more than enough to acquit the former president. A conviction would require votes from 67 senators.
“It’s one of the few times in Washington where a loss is actually a victory,” Mr. Paul said. “Forty-five votes means the impeachment trial is dead on arrival.”
Some Republicans left open the possibility of convicting Mr. Trump. Mr. Paul said Tuesday’s vote was about hearing arguments, not about the outcome of the trial, but the overwhelming sense within the Republican Party is that the trial will fail.
“Just do the math,” said Sen. Susan M. Collins, a Maine Republican who voted against Mr. Paul’s effort.
A trial isn’t scheduled to start until Feb. 9, but senators voted Tuesday to adopt a rules package that the Trump legal team signed off on.
That includes an exchange of legal briefs from the House impeachment managers and the former president’s attorneys. Still unclear is whether either side will want to call witnesses.
The swearing-in began with the most senior Republican administering the oath of office to the most senior Democrat, Sen. Patrick J. Leahy of Vermont, who as president pro tempore will preside over the trial.
Mr. Leahy then swore in all of his colleagues, and they marched to the clerk’s table to sign their names under the oath.
“Do you solemnly swear that in all things pertaining to the impeachment trial of Donald J. Trump, former president of the United States, now pending you will do impartial justice according to the Constitution and laws, so help you God?” Mr. Leahy asked.
The Constitution calls for the chief justice of the United States to preside when the president is on trial, but Chief Justice John G. Roberts Jr. won’t be present because Mr. Trump is out of office.
Republicans said that was evidence that a trial of Mr. Trump stretched the bounds of the Constitution. They expect those questions to loom large in the arguments during the trial.
Democrats are hoping an overwhelming amount of evidence sways even skeptical lawmakers to convict.
“Voting against seeing the evidence is a way not to face the reality of what happened. In the end, they’re going to have to face the evidence,” said Sen. Chris Van Hollen, Maryland Democrat.
Sen. Richard Blumenthal, Connecticut Democrat, said he wants to remind Republicans of the fear they felt on Jan. 6 when they were rushed to safe locations, guarded by armed officers, as rioters took control of the Senate chamber and engaged in an armed standoff outside the House chamber.
“They were in a different frame of mind than today when they were voting on the motion to dismiss. And I want to bring back the feelings of revulsion and terror that were caused on that day,” Mr. Blumenthal said.
Delaying the trial until Feb. 9 gives the Senate a chance to approve President Biden’s Cabinet nominees and to take the first steps on passing his $1.9 trillion coronavirus relief package.
Bipartisan negotiations have begun, but Democratic leaders said they are laying the groundwork to sidestep Republicans if they don’t agree to Mr. Biden’s proposal.
Still, the trial of the former president will remain a dominant fixture.
“It’s almost as if they have no ability to exist except in opposition to Donald Trump,” Mr. Paul said.
Mr. Paul’s motion was a point of order challenging the constitutionality of the proceedings. Senate Majority Leader Charles E. Schumer, New York Democrat, moved to table his challenge, so Tuesday’s vote was technically on that tabling motion.
Joining Democrats in backing Mr. Schumer were five Republicans: Sens. Mitt Romney of Utah, Ben Sasse of Nebraska, Patrick J. Toomey of Pennsylvania, Susan M. Collins of Maine and Lisa Murkowski of Alaska.
Ms. Murkowski said she wished they hadn’t had the early showdown. She said she wanted to wait until the two sides had briefed their arguments over the constitutional questions.
“It’s significant enough that it deserved greater consideration,” she said.
She said holding the vote now seems to have “locked in” opposition to conviction prematurely.
But Sen. Rob Portman, an Ohio Republican who voted the other way, said he is approaching the trial with an open mind.
“I will listen to the evidence presented by both sides and then make a judgment based on the Constitution and what I believe is in the best interests of the country,” he said.
The issue has been debated in the Senate before. In 1876, President Grant’s War Department secretary resigned just minutes before the House was scheduled to vote on articles of impeachment, according to Senate records.
The House impeached William Belknap anyway, and the Senate held a trial after a majority of senators concluded that they did have jurisdiction over a former official.
A majority voted to convict, but the Senate didn’t reach the two-thirds vote necessary, and Belknap was acquitted. News accounts of the day suggested that the same constitutional questions surrounding Mr. Trump weighed heavily on the acquittal.
“It will henceforth be practically impossible to convict an officer who, being exposed in crime, resigns before impeachment,” concluded The New York Times, which had editorialized in favor of conviction.
In the case of Mr. Trump, Democrats honed those same arguments. They said it would be wrong to allow an official to engage in bad acts and escape impeachment by resigning or leaving at the end of a term of office.
Sen. Richard J. Durbin, Illinois Democrat, said Republicans were searching for a way out of having to vote to convict their former party leader.
“They don’t want to be held accountable on that vote, so they’re going to try to make it another argument that’s all about the Constitution,” he said.
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