The Senate is careening toward its second impeachment trial of Donald Trump, which is scheduled to begin Feb. 8 and will provide a vivid reminder of the violent takeover of the Capitol that resulted in five deaths. But Republicans — some of whom initially showed willingness to push for consequences for Trump — have swiftly closed ranks around a new message: Let it go.
“I just think we need to move forward,” said Senator Marco Rubio of Florida, before moving on to talk about the dangerous new COVID-19 mutations. “And I hope that we’ll do that and that history will hold those responsible accountable.”
And that may be exactly what happens, as neither Rubio nor members of his party appear willing to hold Trump accountable, underscoring the former president’s continued hold over the party even after he lost his job and social media megaphone.
The House swiftly impeached Trump for his role in whipping up a violent mob that temporarily halted the counting of electoral votes on Jan. 6. Republicans and Democrats condemned the attack, which included his supporters building a gallows and chanting “Hang Mike Pence!” as they stormed the building.
But now that Trump is out of office, some legal scholars have suggested an impeachment trial could be unconstitutional — an argument many Republicans have swiftly adopted as they seek a way out of the politically unsavory prospect of convicting a figure who remains popular among the base. If Trump were convicted, the Senate could prevent him from running for president again.
Some GOP senators suggested this week that losing the election is punishment enough for Trump; others pointed out that impeaching a former president would set a bad precedent that could set off a cascade of political retaliation for electoral losers. On Tuesday, all but five Republicans supported a motion declaring the trial unconstitutional, previewing how few might even consider a vote to convict Trump.
Among those voting for the unsuccessful motion were minority leader Mitch McConnell, who has not spoken to Trump for weeks and earlier signaled an openness to conviction, and Senator Lindsey Graham, who hours after the riot declared of Trump that “enough is enough,” but has since cozied back up to him.
“We’re going to need Trump and Trump needs us,” Graham said this week.
The collective shirking from holding Trump accountable is a measure of his continued appeal to the Republican base, even as federal authorities are arresting dozens of supporters for their actions on Jan. 6 and the Department of Homeland Security issued an alert warning of potential terror attacks from right-wing militants. Some of the 10 House Republicans who voted with Democrats to impeach Trump have stoically conceded they may very well lose their seats over the move.
“The quiet hope is that he just goes away without having to publicly rebuke him and anger the base,” said Ryan Williams, a Republican strategist and former spokesman for Senator Mitt Romney when he ran for president. “Even at this stage, voting to convict the president all but guarantees you a primary that could end your career in the Senate.”
That was evident Thursday when hundreds of Trump supporters attended a rally in Cheyenne, Wyo., hosted by Florida Representative Matt Gaetz, an ardent Trump ally, to protest Wyoming Representative Liz Cheney’s vote to impeach the former president. And Representative Kevin McCarthy, the minority leader in the House who said during the House impeachment debate that Trump “bears responsibility” for the Jan. 6 attack, traveled to Palm Beach, Fla., to pay court to him this week.
After the McCarthy meeting, Trump’s political organization boasted in a statement: “His endorsement means perhaps more than any endorsement at any time.”
A conviction would require 17 Republicans joining all 50 Democrats in the Senate. Senators Romney, Susan Collins, Lisa Murkowski, Pat Toomey, and Ben Sasse are the only Republicans who did not join their 45 colleagues in supporting the motion calling the trial unconstitutional.
With the votes to convict on the Republican side clearly not there, some Democrats are pushing for a speedy trial of just one week, compared to the three weeks they spent on Trump’s first impeachment trial in early 2020. The short timeline means lawmakers would not have time to gather evidence using subpoena power to find out what Trump knew before the rally about the crowd’s intentions.
Instead, they would likely rely on the mountain of publicly available video and other evidence that shows rioters citing Trump’s words to justify their violent breach of the Capitol. That’s just fine with many Democrats who want to move on the policy matters on their agenda.
“I would hope that we deal with that as quickly as possible to start addressing the needs of working families,” Senator Bernie Sanders of Vermont, an independent who caucuses with the Democrats, said on Wednesday about the trial.
Others, though, are emphasizing the gravity of the situation, urging that if the Senate does not convict, then there should be criminal proceedings brought against Trump.
“This is much, much more serious than anything we’ve ever seen in our lifetime and it’s really the purpose of having articles of impeachment in the Constitution,” said Senator Joe Manchin, a moderate Democrat from West Virginia. “We want to make sure that no one ever does this again, never thinks about doing this again — sedition and insurrection.”
President Biden has stayed out of the debate, saying he would leave it to senators to decide what to do about the trial.
If Republicans do stick together and vote to acquit Trump, that could leave a major political question unresolved at a time when the country is struggling to move past the ex-president’s lies about electoral fraud and attempts to hang onto power after he lost.
“What’s going to happen is Trump is going to say, ‘I’m the victim of a partisan vendetta in impeachment’ and he’ll be able to hog the headlines and then at the end he’s going to be acquitted,” predicted Bruce Ackerman, a constitutional scholar at Yale Law School. “So then he’ll run around and say, ‘I’m not guilty! I was right all along.’”
Ackerman has urged lawmakers to rally around a bipartisan compromise that avoids that scenario — a censure vote based on a provision in the 14th Amendment that bars people from holding office if they participated in a rebellion or insurrection against the United States. In this scenario, the Supreme Court ultimately would hear the evidence for and against the charge and make a decision, removing that judgment from the political arena of Congress.
Collins and Senator Tim Kaine, a Democrat, attempted to drum up support for that route this week, but it has not appeared to get much traction.
“I’ve heard some rumblings, but not serious discussion,” said Senator John Thune of South Dakota, a Republican.
No matter the result, the impeachment trial will be a reminder — and a reliving — of Jan. 6, which could forestall the efforts of some lawmakers hoping that voters will forget it ever happened.
“They can turn a blind eye to it all day long, but it doesn’t change facts on the ground,” said Michael Steele, a former chairman of the Republican National Committee who endorsed Biden in 2020. “The damage and the carnage that was created by their incitement of insurrection — you don’t get to walk away from that.”