A majority of Republicans voted Tuesday that Donald Trump's second impeachment is unconstitutional, a sign the former president will likely be acquitted in his upcoming trial.
Republican Senator Rand Paul forced the Senate to vote on the issue, arguing the trial was illegal given that Trump no longer occupies the Oval Office.
A majority of Republicans, including GOP Leader Mitch McConnell agreed with him: 45 Republicans voted it was illegal but five GOP senators joined Democrats to give them 55 votes to proceed on the matter. Those 45 are also likely to vote for Trump's acquittal when the time comes.
Those Republicans who voted with Democrats were Senators Mitt Romney, Ben Sasse, Susan Collins, Lisa Murkowski and Pat Toomey.
Paul argued that trying a former president would violate the U.S. Constitution.
'He is a private citizen,' the senator said of president.
A majority of Republicans voted that Donald Trump's second impeachment is unconstitutional in a sign he will likely be acquitted when the time comes
Paul pointed that article one, section three of the Constitution states when the president of the United States is tried, the Chief Justice shall preside. Democratic Senator Patrick Leahy is presiding instead of Supreme Court Chief Justice John Roberts, who sat over Trump's first impeachment trial.
'The Chief Justice's absence demonstrate that this is not a trial of the president, but one of private citizen. Therefore I make a point of order that this proceeding, which would try a private citizen and not a president, a vice president or civil officer. violates the Constitution, and is not an order,' he said.
Senate Democratic Leader Chuck Schumer called Paul's theory nonsense and said it would give presidents a 'constitutional get out of jail free card.'
'The Senate has the power to try former officials and the reasons for that are basic common sense. It makes no sense whatsoever that a president or any official could could commit a heinous crime against our country and then defeat Congress's impeachment powers and avoid a vote on disqualification by simply resigning or by waiting to commit that offense until their last few weeks in office,' he said.
'The theory that the Senate cannot try former officials would amount to a constitutional get out of jail free card for any president who commits an impeachable offense,' he concluded.
Earlier, in a speech on the Senate floor, Paul railed against Democrats, calling them 'angry, unhinged partisans, deranged by their hatred of the former president.'
'Shame on those who seek blame and revenge, and who choose to pervert a constitutional process while doing so,' he said. 'I want this body on record — every last person here.'
Ahead of the vote he told reporters on Capitol Hill he did not expect to come out victorious but expected to get at least 40 Republican senators to vote with him.
'I think it'll be enough to show that, you know, more than a third of the Senate thinks that the whole proceeding is unconstitutional, which will show that ultimately they don't have the votes to do an impeachment,' Paul said.
'This is purely about petty partisanship and rancor and bitterness,' the Republican from Kentucky said. 'The whole thing's dead on arrival.'
If Paul gets more than 34 votes from Republicans, it would demonstrate that a Trump conviction would seem all but impossible. He got 44.
He told reporters afterward the vote meant 'the impeachment trial is dead on arrival.'
Republican Senator Rand Paul forced the Senate to vote Tuesday on whether the upper chamber can legally hold a trial for Donald Trump
Only five Republican senators joined Democrats in voting Trump's trial should proceed
The 100 senators - 50 Democrats and 50 Republicans - were sworn in as Donald Trump's jury
Before Paul made his objection, the 100 senators - 50 Democrats and 50 Republicans - were sworn in as Trump's jury.
'Do you solemnly swear that in all things appertaining to the trial of the impeachment of Donald John Trump...you will do impartial justice according to the Constitution and laws, so help you God?,' Leahy asked them.
'I do,' the senators replied.
After taking the oath, senators, in groups of four via alphabetical order, walked to the well of Senate to sign the oath book.
'Here ye! Here ye! Here ye! All persons are commanded to keep silence on pain of imprisonment while the House of Representatives is exhibiting to the Senate of the Unites States an Article of Impeachment against Donald John Trump, former President of the United States,' the clerk of the Senate reminded the lawmakers.
Trump is the only president to have been impeached by the House of Representatives twice. And he is the first to face a trial after leaving office. He could be disqualified from holding future public office if convicted.
The trial is expected to begin on Feb. 9 but the article of impeachment was delivered to the Senate Monday night.
The House approved the single article of impeachment on Jan. 13, accusing Trump of inciting an insurrection with his speech to his supporters before they stormed the Capitol on Jan. 6, which resulted in five deaths and the interruption of the certification of the election.
There was a debate among scholars over whether the Senate can hold a trial for Trump since he left office on January 20th. Many experts have said 'late impeachment' is constitutional, arguing that presidents who engage in misconduct late in their terms should not be immune from the very process set out in the Constitution for holding them accountable.
Senate Republicans on Tuesday invited constitutional law professor Jonathan Turley to join them at their weekly luncheon to address senators questions on the constitutionality of holding an impeachment trial for a former president.
Turley wrote an article in 1999 where he came out in favor of trying former federal officials.
'I say that repeatedly that what I said in '99 is true that obviously those three trials, they had a value other than removal because people were gone. And I explained that that value was the condemnation of conduct as well as possible disqualification. I still believe the historical statement in that,' he told reporters on Capitol Hill after the luncheon.
And he confirmed he got many, many questions from the senators.
'Yes. And no lunch,' he said.
Senator Rand Paul told reporters before his vote that he wanted to get enough Republican senators to vote with him to prove there were not enough votes to convict Donald Trump
Democratic Senator Patrick Leahy, the president pro tempore, swore in the senators and will preside over Trump's trial
Trump's trial is expected to begin on Feb. 9 in the Senate chamber
At least 17 Republican would need to join all 50 Democrats in the evenly divided Senate for Trump to be convicted, a two-thirds threshold that appears unlikely to be reached.
Trump remains a powerful force among Republicans and his supporters have vowed to mount election challenges to lawmakers in the party who support conviction.
Some Republicans have criticized Trump's false claims of voting fraud and his failed efforts to overturn President Joe Biden's Nov. 3 election victory. But no Senate Republicans have said definitively that they plan to vote to convict him.