Trump impeachment trial faces constitutional challenge from Republican senator

WASHINGTON (Reuters) – Republican Senator Rand Paul on Tuesday planned to force a U.S. Senate vote on whether Donald Trump’s upcoming impeachment trial on a charge of inciting this month’s deadly Capitol siege is unconstitutional because Trump is no longer president.

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In an early test of the Senate’s impeachment drive, the Kentucky Republican said he would move for a vote at around 2:30 p.m. EST (1930 GMT), when lawmakers are due to be sworn in as jurors for trial proceedings that are expected to begin Feb. 9.

“I think it’ll … show that more than a third of the Senate thinks that the whole proceeding is unconstitutional, which will show that ultimately they don’t have the votes to do an impeachment,” Paul told reporters.

There is a debate among scholars over whether the Senate can hold a trial for Trump now that he has left office. Many experts have said “late impeachment” is constitutional, arguing that presidents who engage in misconduct late in their terms should not be immune from the very process set out in the Constitution for holding them accountable.

The Constitution makes clear that impeachment proceedings can result in disqualification from holding office in the future, so there is still an active issue for the Senate to resolve, these scholars have said.

Paul, a Trump ally who calls the impeachment a “sham,” is among those Republicans who say it would be unconstitutional to try Trump, who left office on Jan. 20. He also opposes plans to have Democratic Senator Patrick Leahy preside at the trial instead of U.S. Chief Justice John Roberts.

“I want this body on record, every last person here. Is this how you think politics should be?” Paul said in a speech on the Senate floor hours before the expected vote.

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Fellow Republican Senator Lisa Murkowski, who has been critical of Trump, rejected Paul’s move.

“My review of it has led me to conclude that it is constitutional, in recognizing that impeachment is not solely about removing a president, it is also a matter of political consequence,” Murkowski told reporters on Tuesday.

Trump is the only president to have been impeached by the House of Representatives twice and the first to face a trial after leaving power, with the possibility of being disqualified from future public office if convicted by two-thirds of the Senate.

The House approved a single article of impeachment – the equivalent of an indictment in a criminal trial – on Jan. 13, accusing him of inciting an insurrection with an incendiary speech to supporters before they stormed the Capitol on Jan. 6. A police officer and four others died in the melee.

At least 17 Republican would need to join all 50 Democrats in the evenly divided Senate for Trump to be convicted, a two-thirds threshold that appears unlikely to be reached. Trump remains a powerful force among Republicans and his supporters have vowed to mount election challenges to lawmakers in the party who support conviction.

Some Republicans have criticized Trump’s false claims of voting fraud and his failed efforts to overturn President Joe Biden’s Nov. 3 election victory. But no Senate Republicans have said definitively that they plan to vote to convict him.

Although the Constitution calls on the chief justice to preside over presidential impeachment trials, a senator presides when the impeached is not the current president, a Senate source said. First elected to the chamber in 1974, Leahy, 80, is the most senior Democrat in the chamber and holds the title of Senate president pro tempore.

The nine House Democrats who will serve as prosecutors set the trial in motion on Monday by delivering the article of impeachment to the Senate.

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