Sen. Rand Paul said he will force senators to vote Tuesday over the constitutionality of holding an impeachment trial for a former president, which he thinks will prove the futility of Democrats proceeding with the effort.
Senators are slated to be sworn in as impeachment jurors, but Mr. Paul said he’ll raise a point of order that the entire proceeding is not allowed because Mr. Trump is already out of office.
He’s not likely to win, but he said his goal is to show enough senators are skeptical of the legality of what they’re doing that the impeachment can’t end in a conviction, which requires a two-thirds vote.
“I think it’ll be enough to show that you know more than a third of the Senate thinks that the whole proceeding is unconstitutional which will show that ultimately they don’t have the votes to do an impeachment,” Mr. Paul told reporters.
The argument over impeaching a former official has raged since the House sped through an article of impeachment on Jan. 13, accusing Mr. Trump of inciting insurrection in the Jan. 6 attack on Congress.
That timing means the House voted to impeach Mr. Trump while he was in office, but the Senate will hold a trial on a man no longer in office.
Indeed, some legal scholars argue that since House Speaker Nancy Pelosi didn’t transmit the article of impeachment to the Senate until this week — after Mr. Trump was gone — he hasn’t actually been impeached.
A growing number of Republican senators say they have concerns about the legality of what they’re doing.
Democrats say it would be wrong to allow an official to engage in bad acts, then escape impeachment by resigning or leaving at the end of a term of office.
The Senate has held an impeachment trial only once for a former official. A War Department secretary in the 1870s resigned but was tried anyway. He was acquitted.