Republicans are presenting a largely unified front as the Senate prepares to kick off a second impeachment trial of former President Donald Trump, with a growing number saying they don’t believe the Constitution envisioned pursuing conviction of someone already out of office.
On Monday, after nearly two weeks of delay, House Speaker Nancy Pelosi, California Democrat, will transmit the article of impeachment that officially accuses Mr. Trump of inciting insurrection with his speech to supporters ahead of the Jan. 6 attack on Congress.
Under a deal struck late Friday, the Senate will receive the article and swear in members as jurors on Tuesday, but will delay arguments in an impeachment trial until the week of Feb. 8, giving Mr. Trump time to prepare his defense.
Republicans urged Mr. Trump to focus on the constitutional arguments over whether a former president can be impeached because the chief punishment is removal from office. A secondary punishment is banishment from seeking office again. Many senators say that is tied to the removal, which is impossible for someone already out of office.
“A trial after the president has left office is beyond the Senate’s constitutional authority,” Sen. Tom Cotton, Arkansas Republican, told Fox’s “Sunday Morning Futures” program. “The more I talk to Republican senators, the more they’re beginning to line up behind the position I announced a couple weeks ago.”
He said the prospect of a trial of someone out of office for nearly three weeks won’t sit well with Americans dealing with a pandemic and with a new administration in place.
Sen. Marco Rubio, Florida Republican, called the attempt to ban Mr. Trump from office “arrogant.” He told “Fox News Sunday” that voters should decide.
Other Republicans have said they can’t imagine 17 Republicans who would join all 50 members of the Democratic Caucus in voting to convict the president, given the facts of the case and the constitutional uncertainties.
“Well, it takes two-thirds, right, to convict, so it’s kind of like the first time around. We kind of have an inkling of what the outcome is going to be,” said Sen. John Cornyn, Texas Republican. “I mean, Democrats this time didn’t even bother to go through the motions of getting sworn testimony and having hearings in the House. This is not a serious effort.”
Only once, in the case of a War Department secretary in the 1870s, has a former official been tried on impeachment charges in the Senate. He was acquitted.
Even some Democrats figure impeachment is a fool’s errand.
Sen. Tim Kaine, Virginia Democrat, doubted that enough Republicans are ready to join Democrats to convict. He is suggesting an alternate path, flexing the 14th Amendment, which was written after the Civil War to allow Congress to bar people who fought against the U.S. from holding office. It requires only a majority vote by Congress.
Mr. Kaine said he said he thought Republicans would be more likely to support invoking the 14th Amendment than the constitutionally dubious impeachment.
“I think not only is the threshold lower, I think you’re more likely to get Republican votes on it than on conviction because I think Cotton has given Republicans a safe place to land,” Mr. Kaine said. “I don’t like the behavior, but I’m not sure you can convict.”
Sen. Amy Klobuchar, Minnesota Democrat, said Sunday that lawmakers have “many options,” including the 14th Amendment or a censure of Mr. Trump.
She predicted more evidence will be released in the next few weeks.
“As if it’s not enough that he sent an angry mob down the Mall to invade the Capitol, didn’t try to stop it, and a police officer was killed,” she said on ABC. “I don’t really know what else you need to know.”
Republicans aren’t all in agreement against impeachment.
Sen. Mitt Romney, Utah Republican, who voted to convict Mr. Trump during the first impeachment trial, said he sees the need for this one, too.
“If we’re going to have unity in our country, I think it’s important to recognize the need for accountability, for truth and justice,” he said.
Mr. Trump was impeached on Jan. 13, while he was still in office, a week after some of his supporters stormed the Capitol and chased members of Congress from their chambers while they were counting the electoral votes to confirm President Biden’s victory.
Mr. Trump has insisted a speech to supporters before the attack was “appropriate,” and his defenders point to his call for peaceful protest.
In the weeks since the assault, it became clear that some of the attackers planned mayhem even before the president’s speech, but others told investigators that they went to the Capitol at the president’s behest.
Mr. Trump was impeached on a 232-197 vote in the House, with support from 10 Republicans. Some of those Republicans are now facing political backlash.
In the Senate, it would take a two-thirds vote to convict the former president but only a majority vote to ban him from seeking office.
The timing of the trial has been heatedly contested.
Mrs. Pelosi announced Friday that she would send the article of impeachment Monday, triggering a trial beginning Tuesday.
That would have delayed action on other Democratic priorities such as confirming Mr. Biden’s nominees.
Senate Majority Leader Charles E. Schumer, New York Democrat, and Minority Leader Mitch McConnell, Kentucky Republican, struck a deal Friday evening to set a new schedule. The oath of office for the trial will be administered to senators Tuesday, followed by a two-week period for the president and the House impeachment managers to brief their case.
Mr. McConnell proposed a longer time frame, but his spokesman said the deal Mr. Schumer announced was good enough.
“Especially given the fast and minimal process in the House, Republicans set out to ensure the Senate’s next steps will respect former President Trump’s rights and due process, the institution of the Senate, and the office of the presidency. That goal has been achieved,” said McConnell spokesman Doug Andres.
The legal briefs could be particularly momentous because of the weighty constitutional questions surrounding action against a former president.
Democrats say they don’t see a problem with impeaching someone who can’t be removed from office and that the trial itself is a step toward accountability.
“I believe that this impeachment trial, I hope conviction, ultimate disqualification are the very first powerful steps toward unity and our country moving forward,” Rep. Madeleine Dean, Pennsylvania Democrat and one of the impeachment managers, said on CNN’s “State of the Union.”