In theory, the looming impeachment trial of ex-President Donald Trump would force Senate Republicans to confront a question they’ve dodged for the last four years: Is the way the 45th president behaved in office OK or not?
Unfortunately, it appears as though that question won’t be answered when it comes time to vote on whether Trump should be convicted or acquitted on a charge of incitement of the riot that led to the storming of the US Capitol on January 6. Because Senate Republicans have found a way to wriggle out of choosing whether they are going to be for or against Trump.
How? Tuesday’s procedural vote – triggered by Kentucky Sen. Rand Paul – that raised the question of whether it is constitutional for an former president to be subjected to a vote on removal from office tells you everything you need to know about where Republicans are headed.
All but five of 50 Republican senators voted with Paul, who argued that it is unconstitutional to hold an impeachment trial on a former president. (The lone objectors: Sens. Lisa Murkowski of Alaska, Susan Collins of Maine, Mitt Romney of Utah, Ben Sasse of Nebraska and Pat Toomey of Pennsylvania.)
Paul’s push for a vote leaned hard on the idea that the Constitution is decidedly vague about whether a former president is subject to impeachment. And it is! Here’s Article II, Section 4:
“The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
Legal scholars have long debated whether that language was aimed at barring impeachments of former federal officials or whether the lack of specificity about former elected officials was simply the result of the Founders not considering the possibility. (Read this for the argument as to why Congress can’t impeach a former president and this one for why they can.)
But that is, at least as it relates to the Republican Party’s reckoning (or not) with Trump and his legacy, beside the point. Because there’s a 0% chance that all 45 Republican senators who voted with Paul on Tuesday night all did so because they have studied the Constitution and believe deeply that the Founders would not want them to hold this trial. They voted with Paul because it’s the first step in pulling the escape hatch on the question of whether they are for or against Trump and his behavior in office.
See, here’s how it will go. There will be an impeachment trial, starting February 9. And at the end of it – and we don’t know how long it will take, whether witnesses will be called, etc. – there will be a vote on whether to acquit or convict Trump. In order for him to be convicted – and subject to another vote that would ban him from ever running for federal office again – 67 senators would need to vote for conviction. That almost certainly will not happen.
And the reason that lots of the Republicans will give for their vote to acquit Trump was that the Constitution simply doesn’t cover the possibility of removing people from office who are already out of office. They won’t engage at all on the issue of whether what Trump did on January 6 – and in the days and weeks leading up to the Capitol riot – was worthy of his being removed. Because to do so would be to choose a side: Either you stand with Trump (and the insurrectionist mob) or, well, you don’t.
With the exception of a few Republican senators who have already announced their plans to retire at the end of this Congress, the GOP conference lives in fear of Trump and his unruly base – afraid that getting on the wrong side of him (and them) could cost a political career.
And so, they will take the easy way out next month. They will wriggle out – again – of facing the hard choice of whether or not Donald Trump and his behavior in office was the sort of thing that they, as a party, can condone. Which will put off that choice but won’t eliminate it. There is a civil war happening within the GOP and all the elegant legislative solutions in the world won’t stop the eventual reckoning.