Trump is likely to escape conviction in his Senate impeachment trial. Here's why.

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John L. Dorman
·7 min read
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House impeachment managers
Democratic House impeachment managers walk through the Capitol to deliver the article of impeachment alleging incitement of insurrection against former President Donald Trump. Melina Mara/The Washington Post via AP, Pool
  • Former President Donald Trump has faced bipartisan backlash for his role in the Capitol riots.

  • However, barring an unforeseen political event, he is likely to escape a conviction.

  • Trump's hold over the GOP still remains strong.

  • Visit Business Insider's homepage for more stories.

In the immediate aftermath of the deadly January 6 Capitol riots, there was bipartisan outrage toward President Donald Trump's conduct, including a rare show of dissent from a Republican Party that the president had long controlled.

House Democrats, who quickly moved to impeach Trump for "incitement of insurrection" on January 13, picked up the votes of 10 GOP congressmen, a major development that would have been unthinkable just last year - in December 2019, Trump was impeached for abuse of power and obstruction of Congress over the Ukraine scandal without any GOP votes in the House.

The GOP members who cast their votes to impeach Trump almost two weeks ago faced a president who had been defeated for reelection and abandoned by many allies.

Read more: Trump tested the Constitution and shredded traditions. Biden and the Democrats have big plans of their own about what to do next.

With the newest article of impeachment having been transmitted to the Democratic-controlled Senate yesterday, the upper chamber will officially begin the trial during the week of February 8.

Barring some sort of massive political event, though, Trump is likely to escape conviction by the Senate. Why?

The numbers don't add up

Although Democrats now set the Senate agenda, there's a 50-50 split between both parties. Vice President Kamala Harris will likely deliver plenty of tiebreaking votes over the next year, but it won't happen for an impeachment vote.

The Constitution mandates that two-thirds of the Senate, or 67 votes, will be needed to convict Trump. While some Republicans, including Sens. Mitt Romney of Utah and Pat Toomey of Pennsylvania, have expressed an openness to impeaching Trump, getting 17 Republican votes to convict will still be a difficult proposition.

Sens. Ben Sasse of Nebraska and Lisa Murkowski of Alaska came out swinging against Trump immediately after the Capitol insurrection.

"Everything that we're dealing with here - the riot, the loss of life, the impeachment, and now the fact that the U.S. Capitol has been turned into a barracks for federal troops for the first time since the Civil War - is the result of a particular lie," Sasse said on January 14, a day after the House impeached Trump.

Sasse, who has not decided whether he will convict, added that Trump "was derelict in his duty to defend the Constitution and uphold the rule of law."

Lisa Murkowski
Sen. Lisa Murkowski (R-Alaska) called on Trump to resign from office after the Capitol riots. Michael Reynolds/Pool via AP

Murkowski said that the House acted "appropriately" with impeachment, but added that she would "consider the arguments of both sides" in making her decision.

Several Republicans, including Sens. John Thune of South Dakota and Marco Rubio of Florida, have slammed an impeachment trial as divisive.

Thune, the No. 2 Republican in the Senate, feels as though the country would not be served well by a trial.

"In my view, using a constitutional tool designed to remove the president from office after he has already left could further divide our country when we can least afford it," he said in a statement.

On Sunday, Rubio went as far to call the effort "stupid" on Fox News.

"I think it's counterproductive," he said. "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. The first chance I get to vote to end this trial I'll do it."

Even with senators from both sides condemning the riots, Democratic leaders are still falling short of the necessary 17 GOP votes at the moment. President Joe Biden, who represented Delaware in the Senate from 1973 to 2009, admitted as much yesterday.

"The Senate has changed since I was there, but it hasn't changed that much," he said.

Constitutionality arguments are being presented

Some conservatives, like Sens. Tom Cotton of Arkansas and Joni Ernst of Iowa, are questioning whether a former president can even be impeached.

"The Senate lacks constitutional authority to conduct impeachment proceedings against a former president," Cotton said in a statement. "The Founders designed the impeachment process as a way to remove officeholders from public office - not an inquest against private citizens."

Ernst, who said that she didn't think it was constitutional to impeach a former president, decried Trump's role in the rioting, but said she felt a trial would "divide" the country.

Read more: Trump tested the Constitution and shredded traditions. Biden and the Democrats have big plans of their own about what to do next.

"Impeachment is an important constitutional tool," she said in a statement yesterday. "When we have a president that demonstrates he or she is unfit to continue holding office, it provides Congress a pathway to remove the president. My concern right now is that the president is no longer in office. Congress would be opening itself to a dangerous standard of using impeachment as a tool for political revenge against a private citizen."

Trump leaves
In his final hours as president, Donald Trump and first lady Melania Trump wave to supporters as they board Air Force One to head to Florida on January 20, 2021 in Joint Base Andrews, Maryland. Photo by Pete Marovich - Pool/Getty Images

Sen. Ted Cruz of Texas told Insider on Tuesday that the question of constitutionality was a "close" one.

"There's an open question on whether or not a former office holder is subject to impeachment," he said. "There are serious legal scholars on both sides of the question. Constitutional text - there is language that can be read either way. I think it's a close question."

Romney, who voted to convict Trump for abuse of power during the former president's first impeachment trial regarding the Ukraine scandal, believes the new proceedings would be constitutional.

"If you look at the preponderance of the legal opinion by scholars over the years … the preponderance of opinion is that yes, an impeachment trial is appropriate after someone leaves office," he said."

Trumpism is still a force

Throughout his presidency, Trump demanded unyielding loyalty from Republicans, and most party members, thrilled with the voters and donations that he brought to the fold, went along for the ride.

But with most of the former president's social media accounts axed, he has fewer resources to reach a mass audience with his opinions.

Still, most rank-and-file Republicans approve of the president - a recent NBC poll showed Trump with a 87% job approval rating among GOP voters - and it is no secret that he might run again in 2024.

The Wall Street Journal reported that Trump sought to create the Patriot Party, a political party that would pressure GOP senators to refrain from convicting him with the threat of primary challenges.

Rep. Liz Cheney of Wyoming, the No. 3 Republican in the House, and freshman Rep. Peter Meijer of Michigan are already facing primary challenges for voting to impeach Trump earlier this month.

The Senate could permanently bar Trump from holding elective office again, which would only require a majority vote, but the impeachment conviction would first have to pass with 67 votes, which is a tall order.

The lack of a Senate conviction would lead to Trump possibly running again in 2024 or endorsing a GOP successor, which might include one of the senators who stuck with his side during the second impeachment trial.

At the end of the day, Trump is still pulling the levers of the GOP from his Mar-a-Lago club in Florida.

Read the original article on Business Insider