Disputing Donald Trump Trial Constitutionality Helps Senate GOP Deflect Tougher Questions

Most Senate Republicans have toed the line that they feel former President Donald Trump's impeachment trial is unconstitutional and utilizing this argument may allow them to dodge commenting on other contentious points.

On the first day of proceedings, senators voted on whether it was constitutional to try Trump now he is no longer in office—with only six Republicans from the upper chamber voting to move forward with the trial.

For Trump to be convicted, it would take 67 votes against him—meaning the Democrats would need 17 Republicans to join them in this stance. The recent vote and another previous to it hint at it being unlikely this many will do so, as they stick with the unconstitutionality line.

Trump's defense team has argued this point, and GOP lawmakers may also return to the theme throughout the trial.

"The safe harbor for GOP Senators is to continue to hold that the impeachment trial is unconstitutional and to sidestep the substantive issues bearing on Trump's behavior on January 6th," Dr. Thomas Gift, founding director of University College London's Centre on U.S. Politics, told Newsweek.

"By doing so, they can vote to acquit Trump—which most Republican voters support—without actually having to go on the record justifying or defending the former president's actions in a meaningful way."

While going down this route will not necessarily shield them from criticism, Gift suggested it makes the political fallout easier to deal with having the constitutionality line to fall back on.

"Admittedly, a 'not guilty' vote is still a 'not guilty' vote, and it won't totally immunize Republican lawmakers from criticism. However, it will give them a way to deflect charges from Democrats that, by not voting to convict Trump, they're enabling a culture of impunity," Gift said.

"For Republicans, it's not a total no-loss proposition, but the political dilemma that they face is considerably less than if they couldn't default to the 'this trial is unconstitutional' line."

John Owens, a professor of U.S. government and politics at the University of Westminster, similarly said senators could stick to this line moving forward.

Owens told Newsweek Republicans will be aware of problems siding with Trump could pose with some voters, but will also look to balance keeping his supporters on side.

"McConnell is well aware that Trump's excesses and erratic and offensive personality caused women and suburban voters to desert the party in 2020—causing the loss of the Senate and the House so he will want to avoid similar effects in winnable states in 2022," Owens said.

"Cross-pressured by the need to regain these voters' support while keeping Trump activists at bay, my sense is that they will stick with the formula outlined by McCarthy in the House: emphasize some of Trump's policy achievements, possibly criticize the insurrectionists' violence and Trump's provocative words, but avoid disavowing the insurrectionists or Trump.

"And they will stick to the shady procedural point that the trial was unconstitutional and focus on the future."

Owens added that as well as comments on the constitutionality there will also likely be "diversionary" comments such as criticizing Democrat figureheads, branding the process a "show trial," and suggesting there are not the votes to convict.

"Impeachment is a political as well as legal process, which to a large extent is directed at the attentive public, so you can expect that," Owens said.

While Republicans' stances could potentially pose some political difficulties, Owens suggested that while the constitutional line perhaps "won't wash," the midterms of 2022 are likely too far off in terms of the trial having an impact on voters' behavior then.

"The midterms are some way off," Owens said.

"The Dems may be able to campaign effectively on Senate Republicans' support for Trump's excesses and their votes in the impeachment trial. However, by November 2022, the political climate could be different, albeit with Trump's legacy part of it. But, by then the trial will be forgotten."

Gift similarly suggested that much of the impeachment trial will be forgotten by that point.

However, he suggested Trump supporters would remember any Republicans who do cast a guilty vote—which lawmakers will have to take into consideration.

"Voters will forget much of the impeachment trial by the time the midterms roll around, but one thing Trump supporters won't forget are any Republican Senators who cast a 'guilty' vote," Gift said.

"That's especially true if Trump continues to remain in the spotlight and not rule out a 2024 bid. For that reason, it's much safer for Republicans on Capitol Hill to tow the party line by voting to acquit."

In polling, surveys have shown overall most Americans wish to see Trump convicted. However, there is a clear partisan split with the vast majority of Democrats supporting this but most Republicans being against it.

Trump was impeached by the House last month on one count of incitement of insurrection, following the events of January 6. He is the only president to have been impeached twice.

His senate trial began on Tuesday, more than two weeks after he left the White House and Joe Biden was sworn in as president.

The trial is to continue on Wednesday. Lawmakers from both sides have indicated a desire to get proceedings over with quickly.

donald trump in washington on january 6
Donald Trump arrives to speak to supporters from The Ellipse near the White House on January 6, 2021, in Washington, D.C. The former president's second impeachment trial is underway. Brendan Smialowski/AFP via Getty Images