As former President Donald Trump’s second impeachment trial approaches, Republicans find themselves confronting a dilemma about how closely tied they should remain to the polarizing figure who departed the White House last month.
While Democrats face their own impeachment quandary — how much political capital should they spend on a Senate trial for a president who is already out of office at the expense of enacting a COVID-19 relief package and other items on President Biden’s legislative agenda? — it is beginning to dawn on Republicans that Trump might not let them rely on constitutional process arguments in advocating for his acquittal.
Forty-five Senate Republicans have already voted in favor of dismissing the House’s charge that Trump incited an insurrection when he addressed supporters who later stormed the Capitol to protest certifying the election results on Jan. 6. Their reasoning is that it is unconstitutional to use the impeachment process against a former president. (Five GOP senators voted with the chamber’s Democrats that doing so is constitutional.)
The vote signaled that some GOP lawmakers rumored to be open to convicting Trump, such as Senate Minority Leader Mitch McConnell, could, in fact, vote to acquit him. It would be difficult to support Trump’s conviction after going on record as saying that his trial violates the Constitution. Sen. Rand Paul, the Kentucky Republican who raised this point of order, described impeachment as “dead on arrival.”
But Trump, who has already dismissed and replaced a legal team that intended to concentrate on these constitutional questions, appears desirous of a more vigorous defense. This may include re-litigating his claims that the 2020 presidential election was rife with voter fraud that swung the race to Biden. The courts found Trump’s election lawsuits to be without merit — the majority-conservative Supreme Court, including three Trump nominees, did not even hear a case challenging the results. And Trump’s own Justice Department said there was no evidence of fraud sufficient to alter the electoral outcome back when it was still under Trump-appointed leadership.
“There’s no getting around it,” said one Republican operative. “This could be a real nightmare.”
Such a defense would make it more difficult for Republican senators, many of them personally incensed at Trump’s conduct on Jan. 6, to acquit Trump. Only a handful of GOP members of the upper chamber voted to uphold objections to various Biden-won states’ electoral vote tallies.
A poll taken last month by the Public Religion Research Institute found that 57% of voting-age adults blamed Trump and “conservative media platforms that spread conspiracy theories and misinformation” for the attack on the Capitol, which left five people dead. The Senate trial, described by former federal prosecutor and commentator Andrew McCarthy as “a trap,” may force Republicans to alienate further these voters or their own base, among whom Trump remains popular.
“The question, as always, is whether Republicans have bled away all of their voters repulsed by Trump’s conduct in office or if there is still room to fall. I think there is still room to fall,” said political strategist Rory Cooper, who served as communications director for former House Majority Leader Eric Cantor. “We’re seeing unprecedented drops in Republican voter registration in a number of key states across the country. Imagine what it takes to be motivated to go change your voter registration two years out from the next election. Republicans will continue to do fine with self-identified Republicans, but that slice of the pie is getting smaller.”
This is not unfamiliar territory for Republicans. In Trump’s last Senate trial, many GOP lawmakers preferred to point out that the military aid to Ukraine that was at the center of that impeachment inquiry was ultimately released without the investigation into Hunter Biden that the then-president requested. Some planned to concede that the ask was inappropriate, but in the end inconsequential and not illegal. Yet, Trump wanted his “perfect” phone call with Ukrainian leadership to be actively defended on the merits.
The Senate, then controlled by Republicans, acquitted Trump. Now, Democrats cling to a razor-thin majority thanks to Vice President Kamala Harris’s tiebreaking vote. But 17 Republicans would need to join all 50 Democrats to convict Trump. The former president completed his term and could not be removed from office, but a conviction could pave the way for a congressional vote to bar him from running again in 2024.
“There will be a desire by some to put the entire Trump era on trial. But Trump’s opponents should not give him that luxury,” Cooper said. “If this becomes about whether you like Trump or not, then we’ll get Republican votes we saw on the last procedural vote, and that will be that. But if the trial sticks to whether Trump intentionally incited events on Jan. 6, and worse, did nothing to help protect his own vice president and members of Congress for hours during the insurrection, then we may see more Republicans vote against him, and even some of his own supporters could live with the outcome.”
A Senate trial could also hold together Capitol Hill Democrats, who are divided on a number of issues but unified in opposition to Trump while splitting Republicans. Biden has also had some difficulty finding his footing post-Trump, and impeachment could give him more time to do so.
Trump will enter his trial with far looser ties to the GOP’s governing class than during his first one, giving the party less certain cues about how to move forward. “I’m still thinking this one through,” said one longtime Republican strategist.
