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Most Senate Republicans back measure saying Trump impeachment trial is unconstitutional

Trump's status as a former president has led to disagreement over the constitutionality of the trial.

Senate Republicans voted Tuesday for a measure that would have declared the impeachment proceedings against former President Donald Trump unconstitutional because he is no longer in office.

The motion, by Sen. Rand Paul, R-Ky., was defeated by a vote of 55-45, showing that Democrats have an uphill climb to secure the 67 votes needed for a conviction. Among those who voted for the motion was Senate Minority Leader Mitch McConnell, R-Ky., who has said he is undecided whether to convict Trump and who worked on the trial calendar with Senate Majority Leader Chuck Schumer, D-N.Y.

McConnell, when he was majority leader, rebuffed Democrats' efforts to hold the trial while Trump was in office.

Senators were sworn for Trump's second impeachment trial earlier Tuesday, a day after House impeachment managers delivered to the Senate the article of impeachment accusing Trump of incitement of insurrection in the Capitol riot this month.

The senators were given the oath by Patrick Leahy, D-Vt., the president pro tempore of the Democratic-controlled Senate.

"Do you solemnly swear that in all things appertaining to the trial of Donald John Trump, former president of the United States, now pending, you will do impartial justice according to the Constitution and the laws, so help you God?" Leahy asked the assembled senators.

Leahy is presiding over the trial instead of Chief Justice John Roberts because Trump is a former president.

Trump's "former" status has led several Republicans to argue that he can't be subjected to an impeachment trial, because the Constitution says "judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States."

A proponent of that view, George Washington University law professor Jonathan Turley, spoke to Senate Republicans at a lunch before the swearing-in Tuesday. Turley, who testified against Trump's first impeachment in the House, has said he is against the second impeachment, as well, describing it as "at odds with the language of the Constitution" because the trial is taking place with Trump no longer in office.

"They have a tough decision to make," Turley told reporters after the lunch.

Paul, meanwhile, pushed for a vote on the constitutionality issue on the Senate floor Tuesday. "Private citizens don't get impeached. Impeachment is for removal from office, and the accused here has already left office," he said.

"This impeachment is nothing more than a partisan exercise designed to further divide the country," Paul said. "Democrats claim to want to unify the country, but impeaching a former president, a private citizen, is the antithesis of unity."

Paul celebrated the strong support from his fellow Republicans. "45 Senators agreed that this sham of a 'trial' is unconstitutional. That is more than will be needed to acquit and to eventually end this partisan impeachment process. This 'trial' is dead on arrival in the Senate," he tweeted.

But Sen. Rob Portman, R-Ohio, claimed that his vote meant only that he was in favor of debating the constitutionality issue and that it didn't necessarily mean he won't vote to convict. "It's a totally different issue as far as I'm concerned," Portman said.

Only five of 50 Republican senators voted in favor of "tabling" — essentially killing — Paul's motion. They were Ben Sasse of Nebraska, Susan Collins of Maine, Mitt Romney of Utah, Lisa Murkowski of Alaska and Pat Toomey of Pennsylvania.

"In my view, the text and context of the Constitution, the meaning of the term 'impeachment' to the founders, and the most relevant precedents indicate that it is constitutionally permissible for the Senate to consider the impeachment of President Trump," Toomey said in a statement afterward.

Democrats maintain that they have precedent on their side. While no president has been tried by the Senate after having left office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned.

And other legal experts, such as Harvard law professor Laurence Tribe and University of Texas law professor Steve Vladeck, say the trial is constitutional because one of the considerations for the Senate is whether to bar Trump from future federal office.

Democrats note that Trump was impeached by the House while he was still in office, and they maintain that a trial is necessary to hold him accountable for what Schumer called "the most despicable thing any president has ever done," inciting a riot at the Capitol while a joint session of Congress was counting the Electoral College vote.

If Trump were to be convicted by a two-thirds vote, the Senate could then vote to disqualify him from holding federal office in the future.

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Sen. Chris Coons, D-Del., said Tuesday on MSNBC's "Morning Joe": "The only thing that I need to know is that, in the midst of an assault on our Capitol, where thousands of armed and angry rioting supporters of President Trump were beating Capitol Police officers, in one case bludgeoning a Capitol Police officer to death, and breaking into the Capitol and threatening the Congress and trying to stop the certification of an electoral vote, at that moment, President Trump was gleeful and declined requests to dispatch the National Guard and took no action to restrain his supporters and made no effort to check on the safety of his own vice president or the leaders of Congress.

"That alone to me is evidence enough to convict on the charge that was presented to the Senate yesterday. To me, there has to be accountability, and [impeachment] is the accountability tool the Constitution gives us," Coons said.

In an interview Tuesday morning with Hugh Hewitt, Sen. Ted Cruz, R-Texas, straddled the differences of opinion, saying: "I actually think the question of whether an ex-president can be impeached is a close question. I think there are strong and serious constitutional arguments on both sides of the question."

But, Cruz added, "I think this impeachment is a mistake."

"I think it is petty and vindictive on the Democrats' part, and I think they're engaged in political retribution," he said. "And so I'm going to vote against conviction."

In the afternoon, Cruz voted for Paul's motion to declare that the trial is unconstitutional.

While some senators have likened their role in the trial to that of jurors, they're actually more than that. They can vote to overrule Leahy and make decisions about the admissibility of evidence and witnesses.

When he was presiding over the impeachment trial of President Bill Clinton in 1999, William Rehnquist, then the chief justice, noted: "The Senate is not simply a jury. It is a court in this case."

In this trial, senators are victims, as well, after having had to scramble for safety after a mob of Trump supporters stormed the Capitol on Jan. 6. Five people died as a result of the mayhem, including a Capitol Police officer, Brian Sicknick.

The trial is expected to begin the week of Feb. 8 under a deal struck between the parties. Senate Republicans had requested extra time to allow Trump's lawyers to prepare.

The Democratic-controlled House approved the article of impeachment Jan. 13 in a 232-197 vote; 10 Republicans sided against Trump, the most bipartisan vote on a presidential impeachment in history, doubling the five Democrats who voted to impeach Clinton.

Pete Williams, Frank Thorp V, Ginger Gibson and Julie Tsirkin contributed.