Prospects for convicting President Donald Trump in his impeachment trial are waning as more Republicans embrace the argument that a conviction would be divisive, unwarranted or even unconstitutional.
A key point of argument is whether the Constitution allows Congress to try a president who has left office. Many constitutional scholars and 19th century precedent say yes; a growing number of Republicans -- even some who have decried Trump’s conduct -- say no.
Utah Senator Mitt Romney is one of few Republicans to publicly say Trump, now a private citizen, should stand trial on the House’s charge that he incited his supporters to storm the Capitol on Jan. 6.
“The preponderance of the legal opinion is that an impeachment trial after someone’s left office is constitutional,“ Romney said Sunday on CNN’s “State of the Union” program. “I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense. If not, what is?”
Trump’s trial in the Senate will kick off on Monday when House impeachment managers deliver their single article accusing him of inciting the Jan. 6 Capitol that left five people including a police officer dead. Senators will be sworn in as jurors on Tuesday, but arguments in the case will be pushed back until the week of Feb. 8, under an agreement between Majority Leader Chuck Schumer and Republican leader Mitch McConnell, now relegated to the minority.
The accord between Schumer and McConnell buys time for the House impeachment managers to prepare their case and for Trump to craft a defense. It also gives the Senate time to act on President Joe Biden’s agenda, in particular work on a slate of cabinet nominees whose swift confirmation stood at risk of delay because of the trial.
Despite the agreement between Schumer and McConnell on timing, some basic questions about the trial are unresolved. One of the biggest unknowns is who will preside over the trial. The U.S. chief justice presides over impeachment trials for presidents. Chief Justice John Roberts did so last year for Trump’s first impeachment, but it’s unclear whether his duty extends to a trial of someone who is not president. A Supreme Court spokesperson declined to comment.
Vice President Kamala Harris -- technically the president of the Senate and the tie-breaking vote in the 50-50 chamber -- could be called on to preside, which would give Democrats an advantage on procedural rulings during a trial.
But there is political peril in making Harris the public face of a process dwelling on allegations against the last president while Biden is trying to focus the coronavirus pandemic, which has killed more than 418,000 Americans, and building support for his $1.9 trillion economic relief package.
Republicans have criticized Democrats for going ahead with Trump’s second impeachment, not only because they say Congress should be focused on the dual economic and health crises, but also because they say it risks further inflaming tensions. Among those making that argument is South Carolina Senator Lindsey Graham, who was critical of Trump immediately after the attack on the Capitol but has since returned to his role as defender.
Senator Marco Rubio, a Florida Republican, said on “Fox News Sunday” he would vote to end the trial at the first opportunity to move on to other business.
“I think the trial is stupid, I think it’s counterproductive,” Rubio said. “We already have a flaming fire in this country and it’s like taking a bunch of gasoline and pouring it on top of the fire.”
An appeal to Republicans to reject the process even if they fundamentally agree he stoked the mob could form a foundation of Trump’s defense. Getting at least 17 Republicans to vote against Trump along with all 50 Democrats to reach the two-thirds margin necessary for conviction will probably depend on how McConnell approaches the case. Republicans were in the majority during Trump’s first impeachment trial, and McConnell helped lead the chamber to Trump’s acquittal.
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