If a U.S. Senate vote held this week is any indication, it's most unlikely that former President Donald Trump will be convicted in his second impeachment trial: all but five Senate Republicans voted that the trial is unconstitutional. However, Law & Crime reporter Jerry Lambe stresses, in an article published after that vote, that although the Senate will probably acquit Trump a second time, the trial could increase Trump's chances of facing a criminal prosecution.
Sen. Rand Paul of Kentucky proposed a vote on the constitutionality of Trump's second impeachment trial, arguing that the trial is unconstitutional because Trump is no longer president. The Democrat-controlled Senate voted 55-45 that the trial is constitutional — not unconstitutional — but most of the senators who voted in favor of the trial going forward were Democrats. The only GOP senators who disagreed with Paul's resolution were Utah's Mitt Romney, Maine's Susan Collins, Alaska's Lisa Murkowski, Pennsylvania's Pat Toomey and Nebraska's Ben Sasse.
Following the January 6 assault on the U.S. Capitol Building, the U.S. House of Representatives indicted Trump on one article of impeachment: incitement to insurrection. Paul knew that his resolution declaring the trial unconstitutional wouldn't pass, but he wanted to force other senators to go on the record with where they stand — and most Senate Republicans obviously don't believe the trial should even take place. Sen. Marco Rubio of Florida, Sen. Lindsey Graham of South Carolina and other Republicans have been arguing that because Trump is no longer president, a Senate trial would be "pointless."
"The position of the majority of Republicans, which argues the proceeding is pointless, also suggests that lame-duck presidents are essentially not bound by the laws designed to constrain them," Lambe explains. "But legal experts pointed out that even with acquittal seemingly inevitable, the trial itself could spell trouble for Trump."
Albert Goins, a Minnesota-based attorney, has argued that the evidence presented against Trump during a Senate trial could be subsequently used against him in a criminal case. Goins tweeted:
CNN legal analyst Elie Honig tweeted:
Lambe notes that "several defense attorneys who represent those arrested at the U.S. Capitol Siege on January 6 have said their clients acted specifically because they believed Trump told them to do so."