“It could be an alternative,” he told reporters, saying he wanted the Senate to focus on responding to the coronavirus pandemic and confirming President Biden’s Cabinet. “To do a trial knowing you’ll get 55 votes at the max seems to me to be not the right prioritization of our time.”
Kaine’s focus on an alternative, which has been brewing since the House voted to impeach Trump over his role in the Jan. 6 Capitol riot, came a day after the vast majority of Republican senators signaled doubts about the constitutional basis for trying an ex-president on impeachment charges.
Forty-five of 50 Republican senators voted to back Trump on Tuesday. Sen. Rand Paul of Kentucky, who pushed the vote, said it showed that impeachment was “dead on arrival” in the Senate. Convicting Trump would require the support of 67 of 100 senators.
“The vote on the Paul motion . . . was completely clarifying that we’re not going to get near 67,” Kaine said Wednesday. “So I think there’s maybe a little more interest now” in pursuing alternatives.
Axios first reported Tuesday on Kaine’s censure push. He had previously suggested barring Trump from future office under the 14th Amendment provision targeting those who have “engaged in insurrection or rebellion” against the union, though many constitutional scholars question whether Congress can exercise that power outside of impeachment.
But top Democratic leaders said Wednesday they intended to proceed with Trump’s trial for “incitement of insurrection,” and a team of nine House managers is preparing to begin arguments for Trump’s removal on Feb. 9.
“Make no mistake, there will be a trial, and the evidence against the former president will be presented in living color for the nation and every one of us to see once again.” Senate Majority Leader Charles E. Schumer (D-N.Y.) said Wednesday. “We will all watch what happened. We will listen to what happened, and then we will vote. We will pass judgment as our solemn duty under the Constitution demands. And in turn, we will all be judged on how we respond.”
The format of the trial, however, remains in flux — and Tuesday’s procedural vote could bolster the faction of Democrats pushing for an abbreviated trial that simply recounts Trump’s public actions after the November election and in the moments surrounding the riot without pursuing additional investigation of what Trump did behind the scenes.
As Schumer’s comments Wednesday suggested, House managers are expected to use video of Trump and of the Capitol mob to draw a connection between the president’s words and the violence of Jan. 6. But some Democrats argue that the House managers should call witnesses to further enliven the proceedings — or shed additional light on how Trump responded to the Capitol attack as it was happening.
“I think that the core of this case is Trump’s incendiary and inciting words, the words out of his own mouth,” Sen. Richard Blumenthal (D-Conn.) said Tuesday. “But his intent to do harm, to cause injury and maybe even death may come from witnesses who were with him when he was watching the assault on the Capitol.”
Among the reasons Democrats are likely to move forward with the trial is a desire among lawmakers — most of whom were at the Capitol complex on Jan. 6 — to ensure some formal accountability for Trump, who urged his supporters to gather in Washington as Congress tallied electoral votes certifying the Biden victory, then told many of them at a rally near the White House that they should “fight like hell.”
“It’s hard to get over it if you lived it, and many of us in this chamber did,” Sen. Richard J. Durbin (D-Ill.), the majority whip, said Wednesday. “We should go forward, as Lincoln reminded us, because we cannot escape history, and we certainly shouldn’t be party to rewriting history. We need to make a record — a record of fact, not just for our current deliberations, but for history.”
Durbin, however, told reporters that if, after a trial, Trump is not convicted, “perhaps we’ll consider some alternatives.”
Also supporting a trial is Sen. Joe Manchin III of West Virginia, among a small group of centrist Democrats who typically seeks to find common ground with Republicans.
“This is much, much more serious than anything we’ve ever seen in our lifetime and it’s really the purpose of having articles of impeachment in the Constitution,” Manchin said Wednesday. “We want to make sure that no one ever does this again, never thinks about doing this again — sedition and insurrection.”
Kaine said any censure effort would be unlikely to advance unless at least 10 Republican senators offer support — signaling that it would have the necessary 60 votes to overcome a GOP filibuster.
“If we could do something like this and have it be bipartisan and thereby potentially avoid the trial, I think that would be beneficial. But we’re not there yet,” he said.
The level of GOP support for censure, however, might not extend much beyond the five Republican senators who voted Tuesday to kill Paul’s objection. Censure of a president has previously been a matter of questionable constitutionality, dating back to an abortive bipartisan effort to censure President Bill Clinton during impeachment proceedings in 1999.
Sen. John Thune of South Dakota, the No. 2 GOP leader, called a censure push “hypothetical” and said it was clear that Democrats would go forward with impeachment.
“That’s the vote that matters to them,” he said. “I’ve heard some rumblings [on censure] but not serious discussion that had support from enough Democrats or Republicans for that matter to make this a realistic option.”
Among the GOP lawmakers flatly ruling it out Wednesday was Sen. John Cornyn of Texas, who said he would have the same concerns with censuring a former official as he does with impeaching one: that it would set a bad precedent for Congress to retroactively punish ex-officeholders.
“I think we ought to encourage people to move on rather than live in the past,” he said.