Senate GOP boxes itself in on impeachment

The outcome of former President TrumpDonald TrumpThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions The Memo: Left pins hopes on Nina Turner in Ohio after recent defeats Biden administration to keep Trump-era rule of turning away migrants during pandemic MORE’s second impeachment trial has largely been determined after 45 Republican senators voted in support of a resolution declaring it unconstitutional and the impeachment of a private citizen illegal.

The vote boxes in the overwhelming majority of the Senate Republican Conference into supporting Trump’s acquittal on a single article of impeachment before the House managers and Trump’s lawyers have even filed their pre-trial briefs.

Sen. Lisa MurkowskiLisa Ann MurkowskiGraham's COVID-19 'breakthrough' case jolts Senate Sarah Palin says she's praying about running for Senate against Murkowski Graham says he has COVID-19 'breakthrough' infection MORE (R-Alaska), one of only a handful of GOP senators actively considering whether to vote to convict Trump, on Tuesday said it’s now hard to imagine there will be anything close to the 67 votes needed to convict Trump.

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“Whether or not we’re going to see members change their mind after they’ve already taken a vote, I think that’s hard for people to do,” she said.

“Because [people] are like, ‘Wait, wait, wait. You voted to say that this was not constitutional and now you’re changing your mind?’ We don’t get a lot of credit and we don’t get a lot of allowance to change our mind around here,” she added.

“That’s why I think it was a little unfortunate that we had this very spontaneous vote on an extraordinarily significant matter without the considered debate and brief and analysis,” she said. “People had to make really quick decisions.”

Murkowski voted with only four other Republicans, Sens. Susan CollinsSusan Margaret CollinsGraham's COVID-19 'breakthrough' case jolts Senate The Hill's Morning Report - Presented by Facebook - Senate finalizes .2 trillion bipartisan infrastructure bill Schumer: Democrats 'on track' to pass bipartisan deal, .5T budget MORE (Maine), Mitt RomneyWillard (Mitt) Mitt RomneyGraham's COVID-19 'breakthrough' case jolts Senate The Hill's Morning Report - Presented by Facebook - Senate finalizes .2 trillion bipartisan infrastructure bill Senators introduce bipartisan infrastructure bill in rare Sunday session MORE (Utah), 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.) and Ben SasseBen SasseWhite House cyber chief backs new federal bureau to track threats Sasse calls China's Xi a 'coward' after Apple Daily arrest Defunct newspaper's senior editor arrested in Hong Kong MORE (Neb.), to table the motion declaring the trial unconstitutional.  

Sixty-seven senators or two-thirds of the Senate present in the chamber must vote for the article of impeachment to convict the former president.

Murkowski said she and her colleagues were caught “flat-footed” by the procedural vote. She said she was not aware until Tuesday morning that she would be voting on the motion from Sen. Rand PaulRandal (Rand) Howard PaulFive things to watch in two Ohio special election primaries Up next in the culture wars: Adding women to the draft The Hill's Morning Report - Presented by Facebook - A huge win for Biden, centrist senators MORE (R-Ky.) later in the day.

“I think just about everybody was quite surprised to be in a position to actually take not only a public position but a vote on this today. And so I think that there were a lot that were perhaps not as prepared. I don’t feel I am as prepared as I wanted,” she said.

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Murkowski said “the question deserved more considered review by us the Senate.”

Collins told reporters Tuesday afternoon: “I think it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted.”

“Just do the math,” she said.

Paul declared victory after the vote even though 55 senators, including five Republicans, voted to table his argument that the proceeding is unconstitutional.

“It shows the impeachment is dead on arrival. If you voted that it was unconstitutional, how in the world would you ever vote to convict somebody for this?” he said.

“Forty-five of us, almost the entire caucus ... voted that the whole proceeding was unconstitutional, so this is a big victory for us,” he said. “This vote indicates it’s over.”

Paul added he last spoke to Trump about a week ago “but not about this.”

His motion stated that “as of noon last Wednesday, Donald Trump holds none of the positions listed in the Constitution — he is a private citizen” and therefore the trial “violates the Constitution.”

Paul’s motion also asserted that Chief Justice John Roberts’s absence from the proceeding “demonstrate[s] that this is not a trial of the President, but of a private citizen.”

Darrell West, director of governance studies at the Brookings Institution, said Tuesday’s vote largely predetermined the outcome of the trial before it even got started.

“It’s a procedural motion, but it’s a proxy for the real thing. That result does not look very promising for Democrats,” he said. “If that many Republicans feel the trial is unconstitutional, they’re unlikely to convict on the substance.”

West compared the vote to a prosecutor getting an adverse summary judgement from nearly half of a jury before even having a chance to present opening arguments.

“No prosecutor would want to create that kind of opportunity, so Rand Paul was smart enough to be able to exploit that,” he said.

“The battle lines clearly are drawn and it looks like there could be a majority vote to convict but not two-thirds,” he added.  

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Other experts said Trump’s acquittal by the Senate is now a certain outcome.

“It points very decisively to an acquittal and I don’t see any additional pickups in terms of people willing to find [Trump] guilty,” said Ross K. Baker, a professor of political science at Rutgers University who has served several stints as a Senate fellow.

Senate Republicans held a lunch meeting immediately before the vote at which they heard a lengthy presentation from George Washington University law professor Jonathan Turley about why the impeachment trial is unconstitutional.

Murkowski said afterward it was the only in-depth presentation that she and many of her colleagues heard about the constitutionality of the trial before voting on that very question, even though there are conflicting academic opinions on the subject.

“We knew this issue was going to be one that was raised in the trial,” she said of the question of the trial’s constitutionality. “There was a desire and a design to, 'Hey, let’s hear from some of the constitutional scholars.'

“And so he was invited, but it was then not just [hearing] the perspective of one constitutional scholar, it’s, ‘Hey, we’ve got to vote in less than an hour here.’”

She lamented that Turley’s was the only opinion heard before the vote.

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“So we heard one side,” she said.

Romney was the only Republican at Tuesday’s lunch to stand up and push back against Turley’s arguments, according to Sen. Kevin CramerKevin John CramerGraham's COVID-19 'breakthrough' case jolts Senate Biden's bipartisan deal faces Senate gauntlet Trump takes two punches from GOP MORE (R-N.D.), who attended the meeting.

Collins asked for clarification of some of Turley’s arguments, though her comments were not seen by colleagues as directly pushing back on the law professor.

Collins later told reporters that she determined the trial should move forward after taking “a great deal of time” to consult with constitutional scholars and legal experts.

“I spend a great deal of time talking to constitutional scholars and other legal experts and concluded that the text of the Constitution, the purpose of the provisions and Senate precedent all said the trial should go forward, especially since the House acted while the president was still in office,” she said.

Other potential Republican swing votes said they found the lunchtime presentation “compelling.”

“I think there was a lot of agreement,” said Sen. Joni ErnstJoni Kay ErnstOvernight Defense: Biden administration expands Afghan refugee program | Culture war comes for female draft registration | US launches third Somalia strike in recent weeks Grassley pressured to run as Democrats set sights on Iowa Republicans focus tax hike opposition on capital gains change MORE (R-Iowa). “It was a compelling argument, and we’re pursuing a private citizen when perhaps there could be a criminal indictment rather than Congress.”

Sen. Jerry MoranGerald (Jerry) MoranGOP skepticism looms over bipartisan spending deal Graham: Bipartisan infrastructure pay-fors are insufficient This week: Democrats move forward with Jan. 6 probe MORE (R-Kan.) said he found the presentation “interesting” and “useful” but added that he has not yet “concluded” on how to vote on the article of impeachment itself.

Senate Republican Policy Committee Chairman Roy BluntRoy Dean BluntGraham's COVID-19 'breakthrough' case jolts Senate New spotlight on secretaries of state as electoral battlegrounds Biden's bipartisan deal faces Senate gauntlet MORE (R-Mo.) told reporters Tuesday that Senate Minority Leader Mitch McConnellAddison (Mitch) Mitchell McConnellThe Hill's Morning Report - Presented by Facebook - White House, Dems play blame game over evictions GOP skepticism looms over bipartisan spending deal On The Money: Biden, Pelosi struggle with end of eviction ban | Trump attorney says he will fight release of tax returns MORE (R-Ky.) invited Turley to give the presentation to GOP senators immediately before the vote.