By Ethan Kaiser
On Tuesday, Feb. 9 at 1 p.m., the United States Senate convened to try former President Donald Trump for inciting the riot that occurred on Jan. 6. The article passed the House of Representatives on Jan. 13 by a margin of 232 in favor and 197 against, with four Republicans not voting.
Every Democrat alongside 10 Republicans voted in favor of the article. Twelve days later, House Speaker Nancy Pelosi (D-California, 12th District) sent the article to the Senate to formally begin the trial process. The Constitution requires that two-thirds of the 100 Senators (or 67) would need to vote in favor of conviction to convict former President Trump. Since the Senate is split 50-50, Democrats would need to hold their caucus as well as convince 17 Republican Senators to vote in favor of conviction.
If convicted, Donald Trump would be legally barred from running for public office in the future. Getting a two-thirds vote is a near impossible task, especially since the last impeachment trial garnered only one Republican to vote in favor of conviction, Senator Mitt Romney (R-Utah).
Senate Democrats later got a glimmer of hope that they might have the votes to convict after Senate Minority Leader Mitch McConnell (R-Kentucky) had signaled he might be in support of convicting the former President.
“The mob was fed lies. They were provoked by the president and other powerful people,” McConnell said.
However, this hope was short lived. On Feb. 9, the Senate had to first decide if an impeachment trial for the former President was constitutional. There is no part of the Constitution that states a president must be in office when they are impeached or tried, leaving it up to the strength of the arguments presented by the House managers and the Defense.
House manager Jamie Raskin (D-Maryland, 8th District) warned that declaring the trial unconstitutional sets the precedent that the President can do impeachable offenses during the lame duck period and get away with it, calling it a “January exception.” Trump’s legal defense opted to talk about how the impeachment is partisan and divisive as opposed to making their case on the constitutionality of the trial.
After four hours of debate between the House managers and the Defense, the Senate voted 56-44 that the trial is constitutional. Every Democrat alongside Senators Susan Collins (R-Maine), Lisa Murkowski (R-Alaska), Ben Sasse (R-Nebraska), Mitt Romney (R-Utah), Pat Toomey (R-Pennsylvania), and Bill Cassidy (R-Louisiana). Leader McConnell voted against the constitutionality of the trial.
This vote is the reason the trial was dead before it could even officially begin. While the trial will proceed, Democrats have lost all hope of receiving the crucial 17 votes needed to convict former President Trump. Democrats could only afford to lose 33 Republicans in a final vote of conviction, and if 44 Republicans believe that the trial that is about to proceed is unconstitutional, there is a zero percent chance of a conviction vote ever being successful.
As stated before, convicting Trump would bar him from being able to run for office again. However, there is an easier way to do this without a two-thirds vote. Section 3 of the 14th Amendment disqualifies any person who swore an oath to the Constitution from holding state or federal office if that person, as a public official, engaged in insurrection or rebellion against the United States, or provided aid or comfort to those that did.
Congress can, by a three-fifths vote, bar Trump from being able to run for office again. There is precedent to this. In 1871, the Senate refused to seat Zebulon Vance of North Carolina because he violated his oath by supporting the Confederacy. Would a three-fifths vote be hard to achieve? Yes, but the likelihood of it being successful is higher than conviction through an impeachment trial.
Convicting Trump was always going to be a lofty goal for Democrats, but this vote turned something unlikely into something impossible. Donald Trump will be the first President in history to be impeached twice, but like all impeached Presidents before him, he will be acquitted.