Rubio, Scott vote to declare Trump impeachment trial as unconstitutional

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Alex Daugherty
·5 min read
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Florida’s two Republican senators stood behind former President Donald Trump on Tuesday during a procedural vote in the U.S. Senate that may indicate whether there are enough votes to convict the ex-president in the looming impeachment trial.

Sens. Marco Rubio and Rick Scott were among 45 Republicans to vote against an effort to table a motion by Kentucky Sen. Rand Paul to declare Trump’s impeachment trial unconstitutional because he is no longer president. Fifty-five senators — 48 Democrats, two independents and five Republicans — voted to table Paul’s motion.

Ultimately, Paul’s motion was tabled, meaning it will not go to a vote. But 45 voted against that.

And that likely means Trump won’t be convicted — as Paul said before the vote Tuesday. “I think there will be enough support on it to show there’s no chance they can impeach the president. 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,” Paul told reporters.

“It shows impeachment is dead on arrival,” Paul said to reporters after the vote.

To stave off a conviction of Trump, 34 senators must vote against it, assuming all 100 are present for the vote.

The procedural vote on Tuesday took place just after all 100 senators were sworn in as jurors for the trial that will begin on Feb. 9 after Senate leaders agreed to delay the start to confirm President Joe Biden’s Cabinet.

Senate Minority Leader Mitch McConnell and Senate Republican leadership sided with Paul. The five Republicans to vote with Democrats were Sens. Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, Pat Toomey of Pennsylvania and Mitt Romney of Utah.

Trump was impeached by the House of Representatives for a second time on Jan. 14 for inciting a riot at the U.S. Capitol on Jan. 6 during the counting of electoral college votes. Rioters breached the building and killed a police officer after being fed lies that the 2020 election result could be overturned by Vice President Mike Pence.

Earlier on Tuesday, Rubio tweeted that impeachment is a “waste of time” and vowed to vote to end the impeachment trial as soon as possible.

“First of all I think the trial is stupid,” Rubio said in a Fox News interview on Sunday. “We already have a flaming fire in this country and it’s like taking a bunch of gasoline and pouring it on top of the fire. Second, when I look back at time, for example Richard Nixon, I think we would all agree President Ford’s pardon was important for the country to be able to move forward and history held Richard Nixon quite accountable for what he did as a result.”

The pre-trial defense of Trump from Rubio is a departure from last year, when the senator declined to weigh in on Trump’s first impeachment regarding allegations that Trump sought foreign interference from Ukraine to help his reelection prospects. Rubio raised money off of impeachment by giving quill pens to donors after causing a stir when he pulled the feathery instrument out of his desk during the first day of the trial.

At the time, Rubio said his role as a juror prevented him from speaking about the president’s conduct before or during the trial for 11 days, though he ultimately voted against removing Trump from office, saying that removal “would inflict extraordinary and potentially irreparable damage to our already divided nation.”

Scott, who was the only member of Senate Republican Leadership to vote to overturn election results in Pennsylvania hours after the riot, has also consistently defended Trump and is opposed to impeachment.

“This impeachment is nothing more than political theater,” Scott tweeted on Tuesday. “The Democrats are confusing the U.S. Capitol, where we should be helping the American people, with another big white building in D.C. that specializes in theater and shows…. the Kennedy Center.”

Unlike Rubio, Scott was a vocal defender of Trump during his first impeachment trial and has taken the same path during Trump’s second impeachment. Trump will only be found guilty if 67 senators vote to convict, a prospect that is unlikely in a Senate that is evenly divided between Republicans and Democrats. It became even less of a possibility after Tuesday’s vote.

A Congressional Research Service report released on Jan. 15 says the Constitution’s text does not explicitly address whether the House and Senate can impeach and try a former president for actions taken while holding office, though most scholars have argued that Congress has the authority to extend impeachment to officials who are no longer in office.

“The history and precedent is clear, the Senate has the power to try former officials,” Senate Majority Leader Chuck Schumer said before Paul’s point of order vote. “The theory that the Senate can’t try former officials would amount to a constitutional get-out-of-jail-free card for anyone who commits an impeachable offense.”

But Rubio and Scott disagree, and they also argued that Trump’s actions on Jan. 6, where he falsely told the crowd that he won the 2020 election and urged them to “fight like hell” minutes before the riot at the U.S. Capitol weren’t worthy of removing him from office.

The U.S. Senate, if it votes to convict Trump, could also take a separate vote to bar Trump from holding future federal office. Rubio said he’s not in favor of that, either. Trump has mused about running for president in 2024 while both Rubio and Scott could consider a future White House run.

“I think that’s an arrogant statement for anyone to make,” Rubio said, referring to a vote to ban Trump from holding office. “Voters get to decide that. Who are we to tell voters who they can vote for in the future?”