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Most Republicans declare Trump's trial unconstitutional. Here's what that means for conviction.

NBC News logo NBC News 1/26/2021 Sahil Kapur and Julie Tsirkin and Frank Thorp V
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WASHINGTON — Senate Republicans on Tuesday embraced the argument that trying a former president is unconstitutional, setting up a procedural escape hatch for lawmakers to acquit former President Donald Trump on a charge of inciting the Jan. 6 riot.

Forty-five Senate Republicans voted Tuesday to dismiss the trial as unconstitutional. The motion failed by a vote of 45-55, enabling the trial to move forward. But it signifies that a critical mass are leery of the trial and underscores the unlikelihood of finding the two-thirds majority needed to convict.

For many Republicans, an argument over the legality serves as a process-based justification to acquit the former president. The vote isn't necessarily indicative of the final outcome as some senators who voted to dismiss haven't ruled out a conviction.

The approach could insulate fence-sitting senators politically from blowback among conservative voters who want them to stay loyal to Trump, without having to defend the merits of his actions that led to a deadly mob storming the U.S. Capitol.

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The motion, led by Sen. Rand Paul, R-Ky., was backed by Senate Minority Leader Mitch McConnell, R-Ky., whose vote is seen as pivotal to the outcome.

"If more than 34 Republicans vote against the constitutionality of the proceeding, the whole thing's dead on arrival," Paul said before the vote. "They probably should rest their case and present no case at all."

A minimum of 17 Republicans will be needed to achieve a conviction. But just five voted to proceed with the trial: Sens. Mitt Romney of Utah, Ben Sasse of Nebraska, Pat Toomey of Pennsylvania, Susan Collins of Maine and Lisa Murkowski of Alaska.

"Clearly a lot of members, me included, feel like a clear reading of the Constitution would prohibit us from even having this trial," Sen. Kevin Cramer, R-N.D., told reporters on Tuesday. "My sense of it is is that a good number of senators will vote against conviction because they believe we shouldn't be doing this anyway, at all. And that's a reasonable conviction."

Sen. Mike Rounds, R-S.D., who went on NBC's "Meet The Press" Sunday to make his case that a trial would be illegal, said Tuesday that is a growing view within the Senate GOP caucus.

The vote came after Senate Republicans heard from Jonathan Turley, a law professor who served as a GOP witness in the first Trump impeachment trial and influenced their decision to acquit the then-president on charges of abuse of power and obstruction of Congress.

'It's constitutionally sketchy'

Paul said Turley spoke of the "'Brandenburg test' for speech," a reference to the standard established by the Supreme Court ruling on inflammatory speech that incites violence or illegal action, and added that Turley "said there's not a chance in hell that you could convict Donald Trump in any court in the land of incitement."

The nonpartisan Congressional Research Service wrote in a January 15 report that "most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office."

Romney, the only Republican who voted to convict Trump last year, said he believes trying a former president is legal.

"The preponderance of opinion regarding the constitutionality of a trial of impeachment of a former president is saying that it is a constitutional process. And I intend to so vote," he told reporters.

Murkowski, who called on Trump to resign after the Capitol riot, said Tuesday that her review "has led me to conclude that it is constitutional" to try an ex-president. "Impeachment is not solely about removing a president, it is also a matter of political consequence," she told reporters.

McConnell's vote carries substantial sway over a caucus he has led for 14 years, one in which some Republicans privately want to extricate themselves from Trump politically and chart a new path. But many are politically wary of taking a position that could offend GOP voters.

Senate Majority Leader Chuck Schumer, D-N.Y., has emphatically rejected the argument that a trial is unconstitutional, and promised that it will go forward. He has said that if Trump is convicted, there will also be a vote to bar him from holding office again, as allowed under the Constitution.

"It's vindictive. I think it's a waste of time. I don't think it's good for the country. I think it's clearly not unifying the country," Sen. Rick Scott, R-Fla., the chair of the party's Senate campaign arm, told NBC News. "And on top of that, it's constitutionally sketchy."

"I'm not going to support impeachment," he said.

Some GOP senators, including Cramer, say Trump's actions didn't rise to the level of impeachment. Others may rest their objections on the procedural question.

Sen. Joni Ernst, R-Iowa, said Monday that Trump "exhibited poor leadership and holds some responsibility for the anarchy that ensued at the heart of our democracy."

But she said she's skeptical of the trial because "the president is no longer in office," and that impeachment shouldn't be "a tool for political revenge against a private citizen."

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