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 TrumpJan. 6 committee chair says panel will issue a 'good number' of additional subpoenas Overnight Defense & National Security — Presented by AM General — Pentagon officials prepare for grilling Biden nominates head of Africa CDC to lead global AIDS response MORE in an impeachment trial when only five GOP senators rejected an effort by Sen. Rand PaulRandal (Rand) Howard PaulGOP political operatives indicted over illegal campaign contribution from Russian national in 2016 White House debates vaccines for air travel Senate lawmakers let frustration show with Blinken 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 RomneyOvernight Energy & Environment — Presented by the American Petroleum Institute — PennEast drops pipeline plans despite Supreme Court victory Graham tries to help Trump and McConnell bury the hatchet GOP senator will 'probably' vote for debt limit increase MORE (Utah), Ben SasseBen SassePresident of newly recognized union for adult performers boosts membership Romney blasts Biden over those left in Afghanistan: 'Bring them home' Progressives breathe sigh of relief after Afghan withdrawal MORE (Neb.), Susan CollinsSusan Margaret CollinsDo progressives prefer Trump to compromise? Looking to the past to secure America's clean energy future Collins to endorse LePage in Maine governor comeback bid MORE (Maine), Lisa MurkowskiLisa Ann MurkowskiDo progressives prefer Trump to compromise? This week: Democrats hit make-or-break moment for Biden GOP warns McConnell won't blink on debt cliff MORE (Alaska) and Pat ToomeyPatrick (Pat) Joseph ToomeyBlack women look to build upon gains in coming elections Watch live: GOP senators present new infrastructure proposal Sasse rebuked by Nebraska Republican Party 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 ThuneSchumer sets Monday showdown on debt ceiling-government funding bill Congress facing shutdown, debt crisis with no plan B GOP warns McConnell won't blink on debt cliff 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 PortmanRepublicans criticizing Afghan refugees face risks Anti-Trump Republicans on the line in 2022 too Major US port target of attempted cyber attack 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 BluntRoy Blunt has helped forge and fortify the shared bonds between Australia and America The Hill's Morning Report - Presented by Alibaba - Biden jumps into frenzied Dem spending talks Congress facing shutdown, debt crisis with no plan B 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 ErnstHillicon Valley — Presented by Ericsson — Instagram 'pausing' kid-targeted plan Senators aim to increase oversight of cryptocurrency mining with new bill Overnight Defense & National Security — Presented by AM General — Afghan evacuation still frustrates 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 McConnellFord to bolster electric vehicle production in multi-billion dollar push On The Money — GOP blocks spending bill to kick off chaotic week in congress Overnight Health Care — Presented by Alrtia — Booster shots get bipartisan rollout 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 SchumerObama says US 'desperately needs' Biden legislation ahead of key votes Congress shows signs of movement on stalled Biden agenda Schumer gets shoutout, standing ovation from crowd at Tony Awards 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.