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Sen. Rand Paul on Tuesday afternoon is expected to force a vote on whether the Senate impeachment trial of former President Trump is unconstitutional now that he is out of office.
Paul, R-Ky., told reporters he will make a point of order alleging that the trial is contrary to the Constitution -- an argument that multiple Republican senators have made. That will force a vote on the point of order, requiring senators to go on-the-record about whether they believe the trial is constitutional.
"I think there will be enough support on it to show there’s no chance they can impeach the president," Paul told reporters Tuesday. "If 34 people support my resolution that this is an unconstitutional proceeding it shows they don’t have the votes and we’re basically wasting our time."
He added in floor remarks later: "If we are about to try to impeach a president, where is the chief justice? If the accused is no longer president, where is the constitutional power to impeach him?"
The Senate has held impeachment trial proceedings for lower office holders that were no longer in office in the past, including in for former Secretary of War William Belknap in 1876. The Senate acquitted Belknap after he departed office.
Sen. Rand Paul, R-Ky., asks questions during a Senate Homeland Security & Governmental Affairs Committee hearing to discuss election security and the 2020 election process on Wednesday, Dec. 16, 2020, on Capitol Hill in Washington. (Greg Nash/Pool via AP)
But Republicans have argued that the trial for Trump, a former president, would be beyond its jurisdiction. The Senate has not faced a question of this nature on a former president before, so according to most scholars, even if they have an opinion one way or another, it is an open question.
"Impeachment is for removal from office and the accused here has already left office. Hyper-partisan Democrats are about to drag our great country into the gutter of rancor and vitriol the likes of which has never been seen in our nation's history," Paul said.
Paul also defended Trump on the merits of the accusations against him. He said that figurative speech like that from Trump does not rise to incitement of an insurrection and accused Democrats of hypocrisy.
"No Democrat will ask whether Maxine Waters incited violence when she literally told her supporters, and I quote, that 'if you see a member of the Trump administration at a restaurant, at a department store, at a gas station, or any place, you create a crowd and you push back on them,'" Paul said. "No Democrat has ever considered impeaching Maxine for her violent rhetoric. In fact, Republicans, to our credit, never once thought it legitimate to formally censure or impeach these Democrats."
Trump was impeached after for months falsely claiming that he won the presidential election. Trump then held a rally on Jan. 6, when Congress and former Vice President Pence were meeting to certify the results of President Biden's win, where he doubled down on the claims.
Trump and his allies at that rally used pitched rhetoric -- although Trump did at one point tell his supporters to "peacefully and patriotically" march to the Capitol -- as they continued to make false claims about widespread voter fraud.
A pro-Trump mob shortly thereafter stormed the Capitol, forcing Pence and hundreds of lawmakers into hiding, and ransacking the building.
Sen. Ron Johnson, R-Wis., said on Tuesday that senators should vote that the impeachment trial is unconstitutional in order to move on from the Jan. 6 episode.
"I have been reading positions on both sides and I understand there are legitimate arguments on both sides of that question," Johnson said. "The question we will vote on... for every senator should be is it wise, is it the right thing to do. I think from that standpoint, the choice is very clear. It will not heal. It will not unite. Let's put an end to this now."
Senate Majority Leader Chuck Schumer, D-N.Y., last week responded to Republican arguments that the Senate cannot constitutionally hold an impeachment trial for a former president.
"I have heard some of my Republican colleagues argue that this trial would be unconstitutional because Donald Trump is no longer in office, an argument that has been roundly repudiated, debunked by constitutional scholars left, right and center, and defies basic common sense," he said. "It makes no sense whatsoever that a president — or any official — could commit a heinous crime against our country and then be permitted to resign so as to avoid accountability and a vote to disbar them from future office. It makes no sense."
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Schumer added: "Regardless, the purveyors of this unusual argument are just trying to delay the inevitable. ... Make no mistake: there will be a trial and when that trial ends, Senators will have to decide if they believe Donald John Trump incited the insurrection against the United States."
Senate Republicans at their scheduled caucus lunch Tuesday will meet with George Washington University Prof. Jonathan Turley, who has argued against the constitutionality of an impeachment trial for a former president. Senate Minority Leader Mitch McConnell, R-Ky., plans to discuss the constitutionality question at the lunch.
Fox News' Chad Pergram, Kelly Phares and Jason Donner contributed to this report.
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