Two of the Senate GOP’s leading moderates. The 2012 Republican presidential nominee. A retiring old-school fiscal conservative. A Nebraska Republican facing censure by his state GOP.
And after Sen. Bill Cassidy (R-La.) surprised everyone Tuesday, that’s about it.
Just six Republican senators appear to be even considering convicting former President Donald Trump of inciting an insurrection on Jan. 6, despite increasing noise within the party that it needs to separate itself from Trump. On Tuesday, for the second time in two weeks, the 44 other GOP senators voted that the trial that kicked off this week is unconstitutional — a vote that signals there are also 44 votes for acquittal.
“That pretty well calcifies what the feeling will be on our side,” said Sen. Mike Braun (R-Ind.). “I don’t think we lose any more.”
Each of the senators who seem to be keeping an open mind as the trial unfolds face diverging political futures. Sen. Susan Collins (R-Maine) and Cassidy were just reelected, empowering them to make a decision free from reelection considerations; Sen. Lisa Murkowski (R-Alaska) has to face voters next year. Sen. Mitt Romney (R-Utah) was the only GOP senator to vote to convict Trump one year ago, while Sen. Ben Sasse (R-Neb.) has been more critical than ever lately about a president he never supported. And Sen. Pat Toomey (R-Pa.) is retiring next year.
That only a handful of Senate Republicans are seriously weighing whether to convict the former president demonstrates the influence Trump continues to hold on the party. While even his most ardent GOP supporters condemned his language on Jan. 6, most Senate Republicans are coalescing around the argument that convicting a former president is unconstitutional as even conservative legal scholars argue both sides of the issue.
Unlike the previous impeachment trial, Senate Republican leadership isn’t whipping the vote. The six Republicans who view the trial as constitutional are holding their cards close and saying they’ll listen to both sides before reaching a decision.
“I will be attendant to the briefs and the evidence that’s presented and will make a decision at that point,” said Romney, who added that “one of the elements that’s often overlooked is the call to the secretary of state in Georgia, which I think is particularly troubling.”
Similarly, Toomey said in an interview Tuesday that he has not made a final decision on whether he’ll ultimately vote to convict. But he said he hoped he would approach the trial the same way if he weren’t retiring.
“It’s a very serious thing,” Toomey said. “I think it is constitutionally permissible to take this up. I think we have a responsibility to do that. And therefore I’ve got a responsibility to do my job as a juror.”
With Trump out of office, the stakes for conviction are lower than during his first impeachment trial. And the situations are remarkably different, given that much of Trump’s actions in the lead-up to the Jan. 6 insurrection were public and senators themselves were in the Capitol when the attack occurred.
While most Senate Republicans are planning to vote to acquit Trump, few are defending him personally. Instead, their argument against the trial focuses entirely on the constitutionality of the process and not on the former president’s behavior.
Sen. John Cornyn (R-Texas), a close adviser to Senate Minority Leader Mitch McConnell, said that “you can still be upset and feel like what happened on Jan. 6 was not right.” But he added that House managers’ process “does not look like the type of thing we should set as a precedent.”
Even though Tuesday’s vote on the constitutionality of the impeachment trial is the clearest indicator that House managers are likely to fall short of the 17 votes needed to convict Trump, senators warned that it’s not necessarily reflective of the final vote tally.
“I’m not sure that all [senators] that voted that there was a constitutional nexus here would necessarily vote for conviction,” said Sen. Roy Blunt (R-Mo.), the No. 4 GOP leader. “There’s a chance that a couple of people that took the same vote I did will at the end of the day decide that they might vote for conviction.”
Cassidy’s surprise vote Tuesday highlights that some Republican senators truly have not made up their mind and could be persuaded by the arguments from the House impeachment managers. The Louisiana Republican reiterated Tuesday that he is “approaching this as an impartial juror” and criticized the Trump legal team’s presentation as “terrible.”
“The issue at hand is, is it constitutional to impeach a president who has left office?” he said. “And the House managers made a compelling, cogent case. And the president’s team did not.”
Similar to the Jan. 6 vote to certify the 2020 election, McConnell is telling his conference that a final vote to convict will be a vote of conscience. But it could come with political consequences. Rep. Liz Cheney (R-Wyo.), who voted to impeach Trump, faced calls from members of her own party to resign from her post as House GOP conference chair. And Sasse, who has vehemently condemned Trump’s rhetoric, is facing a censure resolution from the Nebraska GOP.
The potential GOP votes for conviction did not appear lost on Trump lawyer Bruce Castor Jr., who specifically mentioned Toomey and Sasse during his opening remarks. Castor, who is from Pennsylvania, nodded at Toomey and called him “Pat,” as he described senators as “patriots first.”
Trump’s lawyer also briefly mentioned the backlash Sasse is facing back home, but he seemed confused about what prompted the Nebraska GOP’s censure motion.
“I saw that he faced backlash back home because of a vote he made some weeks ago, that a political party is complaining about the decision he made as a United States senator,” Castor said. “I don’t want to steal the thunder from the other lawyers but Nebraska, you’re going to hear, is quite a judicial thinking place and just maybe Sen. Sasse is onto something.”
The Nebraska GOP is looking to censure Sasse over his criticism of Trump following the Jan. 6 insurrection and his refusal to back a challenge to the 2020 election results.
Sasse declined to comment, citing his responsibility as a juror. But Collins told reporters mentioning Toomey and Sasse was “inappropriate.”
Murkowski, who was a key swing vote last during Trump’s first impeachment, said Tuesday that the group of senators who view the trial as constitutional will make their own individual decisions. But she expressed dismay that just a year later, the Senate is going through yet another impeachment.
“My hope is that this does not become normalized,” she said. “I mean, we knew where we were last year with the impeachment proceedings. I don’t think there was anybody who thought we were going to have a second round of impeachment and one that was brought about in due part because of the president’s words and actions.”
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