First vote on Trump's impeachment in the Senate reveals lack of support necessary to convict him

By Dareh Gregorian for NBC News

Republicans in the Senate voted Tuesday in favor of a measure declaring the impeachment process against former President Donald Trump unconstitutional, arguing that he cannot be tried for removal because he is no longer in office.

The motion, introduced by Sen. Rand Paul, R-Kentucky, was defeated by a 55-45 vote

, showing that Democrats have an uphill road to secure the 67 votes needed for a Trump conviction

.

Among those who voted in favor of Paul's motion was Senate Minority Leader Mitch McConnell, who said he is undecided on whether to convict Trump and that he worked on the trial schedule with the Senate Majority Leader. Chuck Schumer, Democrat of New York.

This Senate video screenshot shows Kentucky Republican Senator Rand Paul filing a motion to declare the impeachment trial against former President Donald Trump unconstitutional;

on January 26, 2021.AP

McConnell, while still the majority leader

, rebuffed efforts by Democrats to hold the trial while Trump was still in office

.

Senators were sworn in for Trump's second impeachment trial early Tuesday, a day after Democratic Lower House prosecutors handed over to the Senate the article of impeachment against Trump for inciting insurrection in the Capitol riots earlier in the year. this month.

The senators were sworn in by Senator Patrick Leahy, a Democrat from Vermont and president pro tempore of the Senate, who just today announced that he has been infected with coronavirus.

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"Do you solemnly swear, that in everything related to the trial of Donald John Trump, former president of the United States, now pending, you will do impartial justice in accordance with the Constitution and the laws, then God help you?" Leahy told the senators together.

Leahy is presiding over the trial in place of Chief Justice John Roberts

, because Trump is now a former president.

Trump wanted to elect someone as attorney general who supported the false theory of electoral fraud

Jan. 23, 202101: 06

Trump's "ex" status has led several Republicans to argue that he cannot be

impeached

, because the Constitution says that "trial in

impeachment

cases will

not extend beyond removal from office and disqualification from exercising and enjoying any office of honor, trust or profit in the United States ".

One proponent of that view, George Washington University law professor Jonathan Turley, spoke to Senate Republicans at a pre-inauguration luncheon Tuesday.

Turley,

who testified against Trump's first impeachment trial in the Lower House

, has said he is also against the second impeachment, saying it is "at odds with the language of the Constitution" because the trial takes place when Trump he is no longer in office.

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"They have a tough decision to make," Turley told reporters after lunch.

Meanwhile, Paul pushed for a vote on constitutionality in the Senate on Tuesday.

"Private citizens are not charged [in an

impeachment

]. The impeachment is for removal from office, and the defendant here has already left office," he said.

"This impeachment is nothing more than a partisan exercise designed to further divide the country,"

added Paul, "Democrats say they want to unify the country, but impeachment of a former president, a private citizen, is the antithesis of the Unit".

Paul celebrated the strong support of his fellow Republicans: "45 senators agreed that this sham trial is unconstitutional. That is more than it will take to acquit and eventually end this partisan impeachment process.

This trial is dead by the time it reaches the Senate,

"he tweeted after voting.

Second impeachment trial against Donald Trump for "inciting insurrection"

Jan. 26, 202 101: 54

But Sen. Rob Portman, R-Ohio, later claimed that his vote only meant he was in favor of debating the issue of constitutionality, and that the vote does not necessarily mean that he will not vote to convict at the end of the trial.

"It's a totally different topic as far as I'm concerned," Portman said.

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Only five of the 50 Republican senators voted against Paul's motion

.

They were Ben Sasse for Nebraska, Susan Collins for Maine, Mitt Romney for Utah, Lisa Murkowski for Alaska and Pat Toomey for Pennsylvania.

"In my opinion, the text and context of the Constitution, the meaning of the term 'impeachment' for the founders, and the most relevant precedents indicate that it is constitutionally permissible for the Senate to consider the impeachment of President Trump," Toomey said in a later statement.

Democrats maintain they have precedent on their side

.

While no former president has been tried by the Senate after leaving office, Secretary of War William Belknap was tried in the Senate in 1876 after he had already resigned.

And legal experts, such as Harvard Law Professor Laurence Tribe and University of Texas Law Professor Steve Vladeck, emphasize that the trial is constitutional because one of the considerations the Senate must make is whether it will prohibit Trump from flaunting. a position in the federal government.

Democrats point out that

Trump was indicted by the lower house while still in office

, and holding a trial is necessary to hold him accountable.

Therefore, Schumer called "the most despicable thing a president has ever done," inciting a riot on Capitol Hill as a joint session of Congress counted Electoral College votes.

Democratic prosecutors Cheryl Johnson and Tim Blodgett lead the procession to deliver the article of impeachment against Trump on January 25, 2021.

If Trump were convicted by two-thirds of the vote, the Senate could vote to disqualify him from holding office in the future.

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While some senators have compared their role in impeachment to that of jurors in a traditional trial, they are actually more than that.

They can vote to override Leahy and make decisions about the admissibility of evidence and witnesses

, for example.

Then Chief Justice William Rehnquist, presiding over Bill Clinton's impeachment in 1999, noted:

"The Senate is not just a jury. It is a court in this case

.

"

In this particular trial, they too are victims, having to fight for their safety after a mob of Trump supporters stormed the Capitol on Jan.6.

Five people died in the chaos, including a Capitol police officer, Brian Sicknick.

The Senate trial is expected to begin the week of February 8

under an agreement reached between the parties.

Senate Republicans had requested more time to allow Trump's attorneys to prepare.

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The Democrat-controlled lower house approved the article of impeachment on January 13 in a vote of 232-197.

On that occasion, ten Republicans voted to impeach Trump, the most bipartisan vote in history in a presidential impeachment trial, doubling the five Democrats who voted to impeach Clinton.