When then-President Donald Trump was pressing Senate Republicans to reject Biden electors in Congress earlier this month, no senator gave the party more cover in resisting Trump’s demands than conservative Arkansas Sen. Tom Cotton, a trusted member of MAGA society. After the House impeached Trump for inciting the Jan. 6 Capitol riot, though, Cotton’s influence cut the other way. Cotton said in a statement the day of the House impeachment vote that “the Senate lacks constitutional authority to conduct impeachment proceedings against a former president.”
Cotton’s argument, which is far from consensus expert opinion on the question, offered a procedural exit for Senate Republicans who may have felt that the president did commit an impeachable offense but politically couldn’t stomach a vote to convict him.
On Tuesday afternoon, in a pre–impeachment trial proxy vote, Senate Republicans were rushing for that exit. Kentucky Sen. Rand Paul—who is among the strictest proponents of the belief that it’s unconstitutional to hold an impeachment trial for a former president, a legal opinion that aligns directly with his political interest—raised that objection in a rare constitutional point of order, to force a vote.
It was the first time Senate Republicans were forced to go on the record regarding Trump’s second impeachment, and Paul’s goal was to show that support for conviction wasn’t there.
“If more than 34 Republicans vote against the constitutionality of the proceeding,” Paul told reporters ahead of the vote, “the whole thing’s dead on arrival. … [Impeachment managers] probably should rest their case and present no case at all because it’s dead on arrival.”
One promising sign for Paul’s maneuver was whom Republican leaders invited as Senate Republicans’ guest speaker to Tuesday’s lunch: George Washington University law professor Jonathan Turley, the view-shifting law professor Republicans leaned on as an outside expert against Trump’s first impeachment and are leaning on again for his second. After that lunch discussion, Paul told reporters that “upwards of 40” Republicans would support his position.
When the dust cleared at the end of the vote, it was 45 Republicans, including McConnell and the entirety of Senate Republican leadership. Only five Republicans—Mitt Romney, Ben Sasse, Susan Collins, Lisa Murkowski, and Pat Toomey—joined all the Democrats.
It was never likely that 17 Republicans were going to go along with Democrats to produce the necessary 67 votes to convict. But based on Tuesday’s tally, Trump’s second acquittal may now be sealed.
“I think it shows that the impeachment’s dead on arrival,” Paul, declaring victory after the vote, told reporters. “If you voted that [the trial] was unconstitutional, how in the world would you ever vote to convict somebody of this?”
That was not an entirely accurate description of what the vote was. Paul did argue that the impeachment trial was unconstitutional, in his point of order. But what followed from Senate Majority Leader Chuck Schumer was a “motion to table”—i.e., to dismiss—the point of order, a motion that’s not debatable. So senators were not directly voting on the question of whether they considered the impeachment trial constitutional, but on whether to dismiss that question right away, with no further discussion.
That distinction does leave the tiniest bit of space for Republicans who voted with Paul to still convict Trump. They could argue that Paul’s constitutional question deserved a floor debate instead an out-of-hand dismissal—but that their feeling about holding the debate wasn’t indicative of their overall thoughts on the trial. There was at least one senator who ran with this argument: Ohio Sen. Rob Portman, who had announced on Monday that he wouldn’t be seeking a third term.
“I feel like that’s something we ought to have a debate on,” Portman said of Paul’s argument. “The vote to table is inconsistent with that, you know, but I’ve not made my mind up.” He said that this was the same view McConnell held, too.
But for most of the caucus, this was probably a close proxy of their final verdict. Missouri Sen. Roy Blunt, for example—a persuasive member of Senate GOP leadership—was pretty forthright in his statement afterward.
“I believe the constitutional purpose for presidential impeachment is to remove a president from office, not to punish a person after they have left office,” Blunt said. “No consideration was given to impeaching President Nixon when he resigned in 1974. The Constitution hasn’t changed, and the Congress should not set a new, destructive precedent.”
Maine Sen. Susan Collins, who did vote to dismiss Paul’s argument, suggested the writing was on the wall, too.
“I think it’s pretty obvious from the vote today that it is extraordinary unlikely that the president will be convicted,” Collins told reporters. “Do the math.”
Trump doesn’t have a great defense on the merits, and few Republican senators are willing to defend his actions on Jan. 6. But his best defense has always been the passage of time. The more days that went by after Jan. 6, the more excuses could amass to allow Republicans to let the ex-president off the hook and avoid the rage of Republican constituents. They’ve all seen what’s happened to GOP Rep. Liz Cheney after she voted for impeachment, and it isn’t pretty. It’s so much easier to move on and trust the past to reliably fade away.
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