WASHINGTON – Senate Republicans rallied on Tuesday against the trial of former President Donald J. Trump for ‘inciting insurgency’ at the Capitol, with only five members of his party joining the Democrats in a vote to continue with his indictment.
With a vote of 55 to 45, the Senate carefully killed a Republican attempt to dismiss the procedure as unconstitutional because Mr. Trump is no longer in office. But the numbers showed that loyal Republicans were once again ready to spare him from conviction, this time despite his role in stirring up a crowd that violently targeted lawmakers and the vice president on January 6 when Congress convened to elect the election finalize.
“I think it’s very clear from the vote today that it’s extremely unlikely that the president will be found guilty,” said Senator Susan Collins of Maine, one of five Republicans who voted to go to trial. “Just do the math.”
It will take two-thirds of the senators – 67 votes – to obtain a conviction, which means 17 Republicans will have to cross party lines to compose Democrats to convict Trump. If they did, an additional vote to disqualify him from ever taking office again would take a simple majority.
Apart from me. Collins, were the only Republicans to join Democrats in rejecting and continuing the constitutional objection, Senators Lisa Murkowski of Alaska, Mitt Romney of Utah, Ben Sasse of Nebraska and Patrick J. Toomey of Pennsylvania. All five had earlier said they were open to hearing the House’s case for indictment, which was adopted in a dual vote a week after the attack.
Since the facts of the case are still pending and the flesh of the trial has been delayed for two weeks, senators may change their minds. Several Republicans who voted Tuesday to uphold the constitutional challenge that would effectively kill the trial, then rushed to explain that they remain open-minded about the trial, which will be convened on February 9.
In the weeks since the attack, Mr. Trump apologized for his actions, including spreading falsehoods about election fraud and appealing to his supporters who gathered outside the White House on January 6 to march to the Capitol and confront members of Congress to formalize his election . loss and “fight like hell.”
But most agreed that the possible window for dual condemnation of Mr. Trump is rapidly gaining ground by lawmakers evacuated from the Capitol amid the deadly assault, as Republicans were again reminded of Mr. Trump’s remarkable hold on their party and the risks of crossing it. The ten Republicans of the House who broke with their party to support the indictment are already confronted at home and in Washington before an intense setback.
It appears that Sen. Mitch McConnell of Kentucky, the Republican leader, was among those who made such a calculation. He has twice in recent days – through advisers and then in a letter to colleagues – indicated that he is prepared to convict a former president whom he privately despises, and he publicly claimed last week that Trump “provoked” the mob.
But if Mr. McConnell is trying to soften the ground for a Republican faction to kill Mr. Abandoning Trump and throwing him out of the party made it increasingly clear that no such coalition was forming.
When his co-senator Randuck, Rand Paul, lodged a constitutional objection to the procedure minutes after the Senate convened as a court of indictment, Mr. McConnell voted with the vast majority of his conference in favor of the challenge.
It seems to be an acknowledgment that the Republicans are not so fond of Mr. Trump did not want to move on, either out of fear of his promises of retaliation and his overwhelming popularity with the party’s core supporters, or out of the belief that the fight was simply not worth having.
Democrats feared something more conspiratorial and pointed out that it was Mr. McConnell was the one who, as the majority leader, refused the Democrats’ requests to begin the indictment two weeks ago, when Trump was still president. The Republican leader turned around Tuesday and sided with Mr. Paul that the trial of a former president is unconstitutional.
Mr McConnell made no public comment on his view of the vote, nor spoke at a private Republican lunch on the matter, according to people familiar with the session.
The showdown caught many senators off guard on a day they expected to be largely committed to the meticulously written ceremony and logistics of a trial.
Senator Patrick J. Leahy, Democrat of Vermont and president of the Senate pro tempore, was sworn in as the presiding officer and then asked all 100 senators to take an oath to perform “impartial justice” during the trial. . Senators were warned by the sergeant to ‘keep quiet’.
It was then that Mr. Paul, an outspoken defender of mr. Trump, has lodged his formal objection.
“Private citizens are not being accused,” he said. Paul said a short while earlier and called the trial ‘confused’ and vengeful. “The indictment must be removed from office, and the accused have already left office.”
Senator Chuck Schumer, a Democrat from New York and the leader of the majority, moved quickly to block the request.
“The theory that the accusation of a former official is unconstitutional is wrong in any analysis,” Schumer said. “It has been completely dismissed by constitutionalists from across the political spectrum.”
The Senate has clearly taken this into account in the past. In 1876, when the House was preparing to charge him with corruption charges, William Belknap, the war secretary of Ulysses S. Grant, rushed him to the White House, where he submitted his resignation in tears just before Congress could act. The House went ahead anyway, and when the matter arrived in the Senate, a majority of the body decided that it retained the jurisdiction to hear it, regardless of Belknap’s resignation.
Support for a constitutional argument against the trial has increased in the Senate over the past few days, especially among Republicans who have shown little interest in a substantial defense of Mr. To deliver Trump’s actions. But the overwhelming level of Republican support exceeded what almost everyone expected.
Paul declared the victory, saying, “Forty-five votes means the indictment is dead on arrival.”
Murkowski, who praised the House’s accusation and called Trump’s ‘illegal’ actions, reluctantly agrees. She told reporters she feared it would be impossible for most of her Republican colleagues to really consider backing a conviction after putting themselves on record, arguing that the trial should not even take place. .
“Therefore, I think it was a little unfortunate that we had this very spontaneous vote on an extremely important issue without the overwhelming debate and analysis,” she said. “People had to make decisions very quickly.”
But other Republicans have said their votes to uphold Paul’s objection should not be read as opposition to the case against Trump.
Senator Rob Portman of Ohio said he was working with Mr. Paul voted because he wanted a “sensitive discussion” on the constitutional issue, not necessarily to kill the trial.
“I did not decide,” he said. “I’m a juror.”
He and Senator John Thune of South Dakota, the Republican whip, suggested that Mr. McConnell might feel that way too.
“I do not think it binds anyone as soon as the trial begins,” he said. Thune said.
The argument over constitutionality will not be resolved again, when the trial meets again in February, when senators want to use it as justification for the acquittal. The House of Representatives has already begun preparing a constitutional justification for the process, and Trump’s attorneys will be asked to argue the opposite as an important plan for their defense.
The debate stems from the fact that the Constitution does not explicitly discuss accusations of former officials or instruct Congress to pursue a matter such as Mr. Trump, where the president was charged while still in office but not executed before his term expires.
Senate Republicans have adopted a legal theory claiming that the silence of the document means the Senate does not have the power to hear former officials at all, even if the first phase of the process, indictment, took place before they left has.
Just before the vote, Mr. McConnell invited Jonathan Turley, a professor of law at George Washington University, to speak on the constitutional debate during the regular Republican lunch. Mr. Turley has taken a more nuanced position than some who claim the trial of a former official is strictly unconstitutional. He argues that it is “constitutionally unhealthy” to go ahead and create a dangerous precedent that could allow a Congress of one party to prosecute and punish the leaders of another.
According to other leading constitutional scholars, the view is backward, and a trial of a former official – especially one who has just left office – is entirely in line with the designers’ intention to hold public officials accountable. If this is not the case, they argue, officials can regularly commit crimes and offenses in recent weeks and months, confident that they will avoid punishment.
“If an official can only be disqualified while he or she is still in office, an official who has been betrayed and charged with public confidence can avoid liability by voting only one minute before the Senate final conviction,” he said. group of 150 prominent jurists resigned. , including a founder of the Conservative Federalist Society, wrote last week. ‘The drafters did not design the control of the Constitution to be so easily undermined. History supports the reading of the Constitution which enables Congress to prosecute, try, convict and disqualify former officers. ”
Emily Cochrane and Katie Benner contribution made.