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Why the Senate vote on Rand Paul's impeachment trial plan matters

Rand Paul's gambit to declare Trump's impeachment trial unconstitutional didn't work, but today's vote told us quite a bit about what's going to happen.
Image: Sen. Rand Paul. R-Ky., during a hearing at the Capitol
Sen. Rand Paul. R-Ky., during a hearing at the Capitol on Sept. 23, 2020.Alex Edelman / Pool via Reuters

All 100 members of the U.S. Senate were sworn in today for Donald Trump's second impeachment trial. Sen. Pat Leahy (D-Vt.) delivered the oath to his colleagues and will preside over the proceedings -- as the longest serving member of the majority party, the Vermont Democrat is the Senate president pro tempore.

But while the trial itself won't begin in earnest for another two weeks, there was one important vote this afternoon that shed light on what's to come. The New York Times reported:

Republicans rallied en masse on Tuesday against trying former President Donald J. Trump for "incitement of insurrection," with only five members of his party joining Democrats in voting to go forward with the impeachment trial for his role stirring up a mob that attacked the Capitol.

At issue was a motion from Sen. Rand Paul (R-Ky.), pressing senators to vote on whether to dismiss the impeachment charge as unconstitutional because Trump is no longer in office. At face value, the proposal seemed difficult to take seriously: not only is there precedent for impeachment trials for officials after they've left government service, but establishing such a principle would invite future abuses for presidents during their post-election periods.

And yet, even after constitutional scholars treated the argument like a joke, the vote on Paul's point-of-order effort was 55 to 45, which in this case, meant 45 senators -- all Republicans -- don't even believe this trial should occur at all. (Or they're at least pretending to believe this because it's politically convenient.)

A grand total of five GOP senators -- Maine's Susan Collins, Alaska's Lisa Murkowski, Utah's Mitt Romney, Nebraska's Ben Sasse, and Pennsylvania's Pat Toomey -- voted with the Democratic majority.

At face value, it's certainly discouraging that 90% of the Senate Republican caucus voted for such a nonsensical pitch, but let's not miss the forest for the trees: the idea that 17 Senate Republicans are prepared to vote to convict Trump in the upcoming trial is even more difficult to believe now than it was yesterday.

There were all kinds of reports about GOP senators being furious with Trump in the wake of the attack on the U.S. Capitol three weeks ago, but to the extent that there was political momentum for accountability, that momentum has largely evaporated. Even Senate Minority Leader Mitch McConnell (R-Ky.), who leaked word that he'd be open minded about this, voted with his GOP brethren today to reject the trial itself as unconstitutional, reality be damned.

To be sure, it's not officially over. Maybe there will be new revelations. Maybe Trump will speak out from Mar-a-Lago in such a way as to infuriate Senate Republicans anew. As a rule, it's best not to make firm predictions when it comes to Trump, GOP lawmakers, and decisions that are two weeks away.

But after today's vote, the odds of a conviction clearly aren't good.

After the vote on Rand Paul's effort, the Senate voted 83 to 17 on a resolution establishing the pre-trial process. The impeachment trial then adjourned for two weeks, leaving senators to tackle other business in the interim.

Postscript: In case this isn't obvious, let's also not forget that McConnell could've started the impeachment trial before Trump left the White House. He refused. Today, however, McConnell endorsed the idea that it's too late to have an impeachment trial for Trump because he's no longer in the White House.