Democratic Sen. Tim Kaine said Wednesday that he’s discussing with colleagues whether a censure resolution to condemn former President Donald Trump for his role in the deadly Jan. 6 attack on the Capitol could be an alternative to impeachment, even as the Senate proceeds with a trial.
Senate Majority Leader Chuck Schumer, D-N.Y., has said the impeachment trial will move forward. But talk of finding a punishment that more senators could rally around flared a day after just five Republicans joined Democrats in a Senate test vote over the legitimacy of Trump’s trial, suggesting that conviction is unlikely.
It was unclear whether other Democrats, or any Republicans, would sign on to Kaine’s censure proposal, and the trial was moving ahead as planned. House Democrats are busy preparing their formal case against the former president for inciting an insurrection, with arguments starting the week of Feb. 8.
“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,” Schumer said Wednesday.
Yet the widespread expectation that Trump will be found not guilty of inciting the riot is a troubling prospect for many lawmakers, including some Republicans, who fear the consequences for the country if Trump and others aren't held to account for the violent events of Jan. 6.
An angry mob of Trump supporters wanting to stop Congress from confirming President-elect Joe Biden's victory invaded the Capitol, ransacking hallways, breaking down doors and attempting to break into the House chamber with lawmakers hiding inside. They rifled through desks on the empty Senate floor and hunted for House Speaker Nancy Pelosi and then-Vice President Mike Pence, who was in the Capitol overseeing the certification of Biden’s election victory.
Just before the riots, Trump gave a fiery speech outside the White House urging his supporters to “fight like hell” to overturn his defeat as Congress counted the electoral votes.
A week later, on Jan. 13., the Democratic-led House impeached Trump with the backing of 10 Republicans. The case was sent to the Senate on Monday.
Kaine, a Virginia senator, told reporters Wednesday that he has been talking to a “handful” of his colleagues for the last two weeks about the likelihood that Democrats would fall short of convicting Trump at the Senate trial. A conviction would need the support of two-thirds of the senators, or 67 votes. Getting there would require all 50 Democrats, in addition to 17 Republicans.
Kaine noted that the Senate is spending time on impeachment when it could be working to advance coronavirus relief, a major priority for Democrats and Biden.
Tuesday’s vote was “completely clarifying that we’re not going to get near 67,” Kaine said. “So, I think there’s maybe a little more interest now and then could this be an alternative.”
He added: “Obviously, we do a trial, maybe we can do it fast, but my top priority is COVID relief and getting the Biden Cabinet approved.”
He did not give details on the proposal or say with whom he is discussing it.
Sen. Susan Collins, one of the five Republicans who voted with Democrats on holding the trial, said she has been talking with Kaine about ways to punish Trump for his role in the riot.
“The question is, Is there another way to express condemnation of the president’s activities?” Collins said. She said that five is probably “a high mark on what you’re going to see for Republican support” for convicting Trump at trial.
While many Republicans criticized Trump after the riot, passions have cooled since then. Now a number of Republicans are rushing to his legal defense.
The defeated procedural motion from Kentucky Sen. Rand Paul sought to declare the trial unconstitutional because Trump is no longer in office. It's an argument that many legal scholars dispute but that most of the GOP caucus has leaned into, enabling Republicans to oppose the trial without directly defending Trump's behavior. It's unclear how many Republicans would support a censure resolution that would force them to address Trump's behavior directly.
Some said it was too late because Democrats rejected GOP suggestions of censure before the House voted to impeach.
Asked about Kaine's idea, Republican Sen. John Cornyn of Texas said it would be a bad precedent to set. “I guess if we can censure former presidents, then when Republicans get in charge, we can censure Barack Obama or Democrats can censure George Bush."
In the trial, it’s unclear if any Republicans who voted in favor of Paul's motion would now vote to convict Trump on the actual charge of incitement. Republican Sen. Rob Portman of Ohio voted for Paul's motion but said after the vote that he had not made up his mind about conviction and that constitutionality “is a totally different issue” than the charge itself.
Many others indicated that they believe the final vote on Trump's conviction will be similar to the 55-45 tally.
The vote shows that “they’ve got a long ways to go to prove it,” Republican Sen. Joni Ernst of Iowa said of House Democrats’ charge. Republican Sen. Lindsey Graham of South Carolina, a close Trump ally, said he thinks the vote was “a floor, not a ceiling.”
Senate Republican leader Mitch McConnell, who has said Trump “provoked” the riots and who has indicated he is open to conviction, voted with Paul to move toward dismissing the trial.
Asked about his vote Wednesday, McConnell said the trial hasn't started yet. "And I intend to participate in that and listen to the evidence,” he said.
On the floor, Illinois Sen. Dick Durbin, the No. 2 Senate Democrat, criticized Republicans who want to dismiss the trial as he marked the three weeks that have passed since the attack.
“I’ll never forget it," he said. "Do the 45 senators who voted against the impeachment trial last night still remember it? I certainly hope they do.”
Durbin added: "Those of us who are honored to served in this chamber bear a responsibility to keep the facts alive, not let those who wish to ignore them or rewrite history have the last word.”