Forty-five senators voted on Tuesday to have an immediate discussion over whether it’s constitutional to conduct a Senate impeachment trial for a president who no longer is in office.
The vote, which did not succeed because Democrats and five Republicans voted to table the discussion, came on Sen. Rand Paul’s point of order.
While there is a historical precedent for impeaching a former office holder, no former presidents have been impeached.
The Kentucky senator raised a constitutional point of order regarding the issue, but Senate Majority Leader Chuck Schumer made a subsequent motion to table the discussion.
It was that motion that gained 55 votes.
But 45 members of the Senate voted to discuss the issue and resolve it immediately, suggesting Democrats won’t get the 67 votes they need to convict Trump.
House Democrats charged Trump with “incitement to insurrection” for a speech he gave on Jan. 6 to supporters outside the White House. Long before he completed his speech, rioters broke into the U.S. Capitol and vandalized it. At the end of his speech, he encouraged supporters to “peacefully” go to the Capitol to “cheer on” Congress members who were using their constitutional authority to object to slates of electors.
Paul made his case earlier Tuesday.
This is the BEST takedown of Democrats’ unconstitutional impeachment sham I’ve seen.
EVERY American should see this speech from @RandPaul.
Watch what your elected officials are busy debating while millions of Americans are suffering
— Charlie Kirk (@charliekirk11) January 26, 2021
Paul said “a third of the Senate thinks that the whole proceeding is unconstitutional.”
Another complication is that the Constitution requires the chief justice of the Supreme Court to preside over the impeachment of a president. But since Trump’s term has expired, Chief Justice John Roberts would not be involved. Democrats said Vermont Democratic Sen. Patrick Leahy would preside.
He also would serve as a juror, voting to convict or acquit.
Opponents of trying Trump also argue the senators themselves could be considered witnesses, victims or survivors of the riot at the Capitol.
“Democrats brazenly appointing a pro-impeachment Democrat to preside over the trial is not fair or impartial,” Paul said on the Senate floor. “Hyper-partisan Democrats are about to drag our great country down into the gutter of rancor and vitriol, the likes of which has never been seen in our nation’s history.”
The senator charged that the Democrats’ agenda is designed “to further divide the country.”
“Private citizens don’t get impeached,” he argued, insisting Democrats should be focusing on the work that the nation needs to get done.
He said Democrats “are about to do something no self-respecting senator has ever stooped to.”
“[They] are insisting the election is actually not over and so they insist on regurgitating the bitterness of the election,” he said.
Paul called the effort a “sham” and pointed out that Democrats also have used language that could be described as “inciting” but have not been punished.
In fact, he pointed out that Kamala Harris, now vice president, raised money to post bail for rioters in Minneapolis.
“Are we going to impeach every politician who has used the word ‘fight’ in a speech?” he asked.
There’s also been criticism of the House’s “snap impeachment” process that allowed no evidence and no witnesses.
Constitutional scholar Jonathan Turley warned that it would allow for the impeachment of “any president” in the future.
The law professor at George Washington University said: “Trump’s speech does not meet the definition of incitement under the U.S. criminal code. Indeed, it would be considered protected speech by the Supreme Court.
“Despite widespread, justified condemnation of his words, Trump never actually called for violence or a riot. Rather, he urged his supporters to march on the Capitol to express opposition to the certification of electoral votes and to support the challenges being made by some members of Congress. He expressly told his followers ‘to peacefully and patriotically make your voices heard,'” Turley said.
He also argued that Trump didn’t call for any lawless action.
“Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration. Many of the same members have used the same type of rhetoric to ‘take back the country’ and ‘fight for the country.’ The concern is that this impeachment will not only create precedent for an expedited pathway of ‘snap impeachments’ but allow future Congresses to impeach presidents for actions of their supporters.
“Democrats are pushing this dangerously vague standard while objecting to their own statements being given incriminating meaning by critics. For example, conservatives have pointed to Rep. Maxine Waters, D-Calif., calling for people to confront Republican leaders in restaurants; Rep. Ayanna Pressley, D-Mass., insisted during 2020’s violent protests that ‘there needs to be unrest in the streets,’ while then-Sen. Kamala Harris, D-Calif., said ‘protesters should not let up’ even as many protests were turning violent. They can all legitimately argue that their rhetoric was not meant to be a call for violence, but this is a standard fraught with subjectivity,” he said.
Catholic League President Bill Donohue argued Trump never instructed anyone to engage in violence while conceding, as critics say, that he “stoked people’s passions.”
But if “inflammatory rhetoric” is the standard, he said, “then Trump’s critics are at best ethically compromised.”
He pointed out Barack Obama in 2008 said: “I need you to get out and talk to your friends and talk to your neighbors. I want you to talk to them whether they are independent or whether they are Republican. I want you to argue with them and get in their face.”
And his attorney general, Eric Holder, said in 2018: “When they go low, we kick ’em. That’s what this new Democratic Party is about.”
Waters went much further in 2018.
“Let’s make sure we show up wherever we have to show up. And if you see anybody from that [Trump] Cabinet in a restaurant, in a department store, at a gasoline station, you get out and create a crowd,” she told a raucous crowd. “And you push back on them. And you tell them they’re not welcome anymore, anywhere.”
Rep. Cory Booker, D-N.J., said last year, “Please, get up in the face of some Congress people.”
House Speaker Nancy Pelosi downplayed leftists rioting, saying, “People will do what they do.”
Donohoe also cited Pressley, who said, “You know, there needs to be unrest in the streets for as long as there is unrest in our lives, and unfortunately there is plenty to go around.”
And Harris said: “They’re [left-wing protesters] not gonna stop before Election Day in November and they’re not gonna stop after Election Day. And that should be—everyone should take note of that on both levels, that this isn’t, they’re not gonna let up and they should not. And we should not.”
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