The Senate yesterday voted down a motion brought by principled limited government
constitutional conservative Republican Senator Rand Paul of Kentucky, who challenged the constitutionality of an impeachment trial against a former president.
(We have argued along similar lines in our articles “Insurrection Against Whom?” “Tell Senators Impeachment of Citizen Donald J. Trump is Unconstitutional” and “A Senate Trial After Trump Leaves Office Would Be Unconstitutional.”)
Only five Republicans joined all the Democrats in voting down Senator Paul’s point of order and moving to proceed with the anti-constitutional persecution of former President Trump. The vote was an indication that Democrats will not attract the 17 Republicans that would be needed to convict Mr. Trump at trial.
Five Republicans — Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse and Pat Toomey — joined all Democrats in voting to table the point of order, brought by Senator Paul.
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.”
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.”
Senate Republicans held a lunch meeting immediately before the vote at which they heard a lengthy presentation from George Washington University law professor and constitutional scholar Jonathan Turley about why the impeachment trial is unconstitutional, reported Alexander Bolton of The Hill.
In an op-ed for The Hill, Prof. Turley explained:
…the Senate is faced with the second prudential question. There are cases which, even if legally brought, contain errors so significant they must be dismissed as unsound — on prudential rather than constitutional grounds. This case raises such a fundamental error. The problem is not what was sent to the Senate but what was not: a record. For the first time, the House sent an article of impeachment to the Senate without any hearing, any testimony, any response from the president — not a word. It simply sent a poorly crafted article, like a conclusion in search of proof.
The issue for senators is whether they want to legitimize such a radical departure from the traditions of both chambers. Some of us called for the House to hold at least a day of hearings to allow an opportunity for the president to respond. Yet the House refused to call a single witness or hold a hearing. House leaders said there was not a day to spare — and then did nothing. They impeached Trump on Jan. 13 but waited until Jan. 25 to submit the article to the Senate.
Translation: This is a blatantly political impeachment for which no fact record supporting the charges was established.
In a lengthy post on his Jonathan Turley blog, Prof. Turley summarized the case against impeaching citizen Donald Trump this way:
The problem from my perspective remains the balancing of such values against the countervailing costs. The Trump impeachment only magnified those concerns. For the first time in history, the House used what I have called a “snap impeachment” without the traditional hearing or formal opportunity for a president to respond. The House could have waited a couple days to allow such a hearing to occur. Instead, it used a snap impeachment and then sat on the article of impeachment for many days — similar to what it did in the first Trump impeachment. The Senate would then hold a retroactive trial for someone who is now a private citizen.
Under this approach, any new Congress could come into power and set about disqualifying opponents from public office despite their being private citizens. A Republican Congress could have retroactively impeached Barack Obama or retried Bill Clinton. They could insist that there is no escaping impeachment by merely leaving office.That is why, even if the Senate does not view this as extraconstitutional, it should view this trial as constitutionally unsound.
incitement of insurrection
ex post facto laws
bills of attainder
Sen. Rand Paul