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A stunt by Rand Paul reveals the restricted Republican assist for impeachment

Senator Rand Paul (R-KY) held a vote Tuesday to highlight Republicans' opposition to impeachment and to argue that there isn't enough GOP support to condemn former President Trump in his upcoming Senate trial.

Shortly after the senators were sworn in for the trial, Paul asked for a vote on the constitutionality of the indictment against a former president – something several GOP lawmakers have questioned. His motion was filed quickly, but the vote on the rejection was still illuminating.

As Vox's Ian Millhiser pointed out, a majority of legal scholars have concluded that impeachment proceedings against a former president would be constitutional. However, the precedent for dealing with the impeachment of a former government official is less clear: In 1876, Secretary of War William Belknap faced trial in the Senate after his resignation, and although a majority voted to continue the trial, two-thirds voted not to convict, and several lawmakers raised concerns about the constitutionality of the procedure.

Republicans have used the same constitutionality issue – and the lack of direct precedent for a former president facing impeachment – to cast doubt on the need to hold a trial against Trump, who is accused of instigating the Capitol insurgency available on January 6th.

Some Republicans may do this because they believe Trump didn't do anything wrong – but there are other reasons GOP Senators prefer to avoid trial. Concerns remain among many lawmakers that the anger of loyal supporters of the former president by supporting the conviction could undermine their base and affect their chances of voting. Conversely, by supporting the acquittal, they would take a step that arguably minimizes the severity of the attack on the Capitol and the guilt of the president.

While the Senate voted Paul's motion instead of voting directly, the breakdown of that vote was telling in itself. Ultimately, only five Republicans supported the motion, a sign that the majority of the conference would have been open to ponder it.

The five Republicans who voted in favor of submitting the application were critical of Trump after the uprising: Sens. Mitt Romney (UT), Susan Collins (ME), Lisa Murkowski (AK), Ben Sasse (NE) and Pat Toomey ( PA).

Paul wanted to hold this vote to demonstrate how many Republicans were against the process and to point out how unlikely Trump's conviction would be without their support. The implication is that if 45 Republicans were open to vote on the constitutionality of the process, they would likely not be voting to convict Trump on impeachment, making the process unnecessary.

"I think there will be enough support to show that there is no chance of indicting the president," Paul said earlier.

A conviction requires two thirds of the Senate. Without the backing of at least 17 Republicans, the 50-member Democratic caucus won't have the numbers to convict Trump – and hold a subsequent vote that bans him from future federal office. Unless Republicans join the five who voted in favor of filing the motion, the Senate will fail to meet the required voting threshold in Trump's process. (It's worth noting that some senators might vote on the conviction differently than they did this week.)

In response to Paul's efforts, the Democrats on Tuesday stressed that jurisprudence supports the constitutionality of the process, noting that views can change once arguments and evidence are presented. Democrats have argued that they want to continue the process to hold Trump accountable for his efforts to overthrow the elections and allow all senators to vote on his conviction.

However, if the previous impeachment trial – when Romney was the only Republican to vote for a conviction – is any indication, the likelihood that Democrats will be able to garner the support of the GOP they are convicting is increasingly less likely Need Trump.

"I think it's pretty obvious from today's vote that the president is extremely unlikely to be convicted. Just do the math," Collins told reporters after the vote.

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