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Just five GOP senators vote Trump impeachment trial is constitutional

The Senate sent a strong signal Tuesday that there are not nearly enough votes to convict President TrumpDonald TrumpGaetz was denied meeting with Trump: CNN Federal Reserve chair: Economy would have been 'so much worse' without COVID-19 relief bills Police in California city declare unlawful assembly amid 'white lives matter' protest MORE in an impeachment trial when only five GOP senators rejected an effort by Sen. Rand PaulRandal (Rand) Howard PaulAlarm grows over impact of states banning trans youth treatment The Hill's 12:30 Report - Presented by ExxonMobil - World mourns the death of Prince Philip The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings MORE (R-Ky.) to declare the looming trial unconstitutional. 

The Senate voted 55-45 to set aside Paul's motion, with all but five GOP senators siding with Paul. GOP Sens. Mitt RomneyWillard (Mitt) Mitt RomneyTwo sheriff's deputies shot by gunman in Utah Romney blasts end of filibuster, expansion of SCOTUS On management of Utah public lands, Biden should pursue an accountable legislative process MORE (Utah), Ben SasseBen SasseTo encourage innovation, Congress should pass two bills protecting important R&D tax provision Maine GOP rejects motion to censure Collins Senators urge Energy chief to prioritize cybersecurity amid growing threats MORE (Neb.), Susan CollinsSusan Margaret CollinsThe Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings Biden-GOP infrastructure talks off to rocky start Moderate GOP senators and Biden clash at start of infrastructure debate MORE (Maine), Lisa MurkowskiLisa Ann MurkowskiTrump looms large over GOP donor retreat in Florida Top GOP super PAC endorses Murkowski amid primary threat Biden-GOP infrastructure talks off to rocky start MORE (Alaska) and Pat ToomeyPatrick (Pat) Joseph ToomeySasse rebuked by Nebraska Republican Party over impeachment vote Philly GOP commissioner on censures: 'I would suggest they censure Republican elected officials who are lying' Toomey censured by several Pennsylvania county GOP committees over impeachment vote MORE (Pa.) voted with Democrats to table Paul's point of order.

The vote is the clearest sign yet that Trump is heading toward a second acquittal and offers an early insight into which Republicans are lining up behind an argument that his second impeachment trial isn't constitutional.

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Sen. John ThuneJohn Randolph ThuneSunday shows - Infrastructure dominates GOP senator dismisses Trump-McConnell feud Thune: 'There are Republicans who would vote' for smaller infrastructure package MORE (S.D.), the No. 2 GOP senator, said he thought the vote was "indicative" of where Republicans are but it doesn't "bind" them into voting a particular way on conviction.

Sen. Rob PortmanRobert (Rob) Jones PortmanGOP Ohio Senate candidate asked to leave RNC retreat To encourage innovation, Congress should pass two bills protecting important R&D tax provision The Hill's Morning Report - Biden assails 'epidemic' of gun violence amid SC, Texas shootings MORE (R-Ohio), who voted against tabling Paul's effort, said he didn't think the vote was about whether or not the trial was constitutional but if there should be a discussion. The vote effectively pigeonholed Paul.

Portman added that he thought Tuesday's vote and the eventual question of acquittal or conviction are a "totally different issue."

Trump will be the first president to undergo a trial after leaving office, but the Senate previously held an impeachment trial for a Cabinet official after they left office.

Paul, speaking ahead of the vote, warned that he wanted to force his colleagues to go on the record.

"If we are going to put every politician in jail, are we going to impeach every politician who has used the words 'fight' figuratively in a speech? Shame," he said, accusing Democrats of being "deranged by their hatred" of Trump.

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"I want this body on record. Every last person here," Paul added.

Several GOP senators said heading into the vote that they hadn't made a decision on how they would vote, hadn't talked to Paul or, until they saw Tuesday's Senate floor schedule, didn't know he would force the vote.

"Until I read my notice from the leader this morning I didn't know there was a chance it was going to happen," said Sen. Roy BluntRoy Dean BluntThune: 'There are Republicans who would vote' for smaller infrastructure package Republicans can't handle the truth about taxes Sunday shows preview: Democrats eye two-part infrastructure push; Michigan coronavirus cases surge MORE (R-Mo.)

Though some GOP senators have said they are waiting to hear presentations during the trial, a growing number appear to be latching onto the argument that the trial, which will start next month, is not constitutional.

Legal professor Jonathan Turley attended a closed-door GOP lunch where senators discussed the strategy.

Sen. Joni ErnstJoni Kay ErnstTrump faces test of power with early endorsements GOP looks to squeeze Biden, Democrats on border Blackburn introduces bill to require migrant DNA testing at border MORE (R-Iowa) said in a statement Monday night that while Trump "exhibited poor leadership and holds some responsibility" for the attack on the Capitol on Jan. 6, that her "concern right now is that the president is no longer in office."

"Congress would be opening itself to a dangerous standard of using impeachment as a tool for political revenge against a private citizen, and the only remedy at this point is to strip the convicted of their ability to run for future office — a move that would undoubtedly strip millions of voters of their ability to choose a candidate in the next election," she added.

Senate GOP Leader Mitch McConnellAddison (Mitch) Mitchell McConnellBiden to meet Monday with bipartisan lawmakers about infrastructure 100 business executives discuss how to combat new voting rules: report Arkansas governor says 'divisive' Trump attacks on GOP officials are 'unhelpful' MORE (Ky.), who has previously said that Trump "provoked" and "fed lies" to his supporters before they assaulted the Capitol, voted against against tabling Paul's effort. McConnell has said he's undecided on whether he will vote to convict the former president.

Both Romney and Murkowski said on Tuesday before the vote that they believed the trial was constitutional.

"My review of it has led me to conclude that it is constitutional in recognizing that impeachment is not solely about removing a president, it is also a matter of political consequence," Murkowski said.

Romney added that "the preponderance of opinion with regards to the constitutionality of a trial of impeachment of a former president is saying that it is a constitutional process."

Toomey declined to comment to reporters after the vote, but indicated in a statement that his vote does not mean he will convict Trump at the end of the trial.

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“When President Trump’s impeachment trial begins on February 9th, I will again fulfill my responsibility to consider the arguments made by his lawyers and the House managers," he said.

Collins said she had been speaking with constitutional scholars.

"[I] concluded that the text of the constitution, the purpose of the provision, and Senate precedent all meant that the trial should go forward, especially since the House acted while the president was still in office," Collins said.

Democrats have panned the GOP push to deem Trump's trial unconstitutional, arguing that Republicans are trying to avoid having to make a decision on if Trump's rhetoric met the bar for conviction.

"Some of my Republican colleagues have latched onto a fringe legal theory that the Senate does not have the constitutional power to hold a trial because Donald Trump is no longer in office," said Senate Majority Leader Charles SchumerChuck SchumerNY Times beclowns itself by normalizing court-packing 'to balance the conservative majority' The first Southern state legalizes marijuana — what it means nationally H.R. 1/S. 1: Democrats defend their majorities, not honest elections MORE (D-N.Y.).

"This argument has been roundly debunked by constitutional scholars from the left, right and center. It defies precedent, historic practice, and basic common sense," he added.

—Updated at 5:38 p.m.