Paul says Roberts’s absence ‘crystalized’ argument against Trump impeachment

Sen. Rand Paul (R-Ky.) on Thursday said hearing that Supreme Court Chief Justice John Roberts would not preside over former President Trump’s upcoming impeachment trial “crystalized” the GOP argument that the proceedings are unconstitutional.

Paul emerged as a hero for Trump supporters this week after he used a little-known procedural tactic, a privileged constitutional point of order, to strike a severe blow to Democrats’ hopes of convicting the former president on a House-passed article of impeachment.

Forty-five Republican senators voted this week to support Paul’s motion that said Trump’s impeachment trial is unconstitutional since he’s no longer in office.

“We’ve long been aware that a constitutional motion is a privileged motion and that it could happen. We discussed it within our office,” Paul told The Hill in an interview Thursday. “What really crystalized it for me is that about a week ago we were on a Republican conference call and they said the chief justice wasn’t coming.”

“Myself and others were like, ‘Oh my goodness, the chief justice is not coming. That’s a huge, huge signal that there’s something wrong with this proceeding,’” Paul said, recounting the conference call on Jan. 21, the day after Trump left office.

Paul said the news that Senate President Pro Tempore Patrick Leahy (D-Vt.) would preside over the second impeachment trial struck many Republicans as deeply unfair. Leahy voted to convict Trump on two articles of impeachment last year.

“The optics of the chief justice not coming and then also the optics of a person who had favored the last impeachment now presiding over the trial — who’s also going to vote in the trial — it just didn’t look right or sound right to any of us,” he added.

Paul described how he then put together a motion to declare the trial unconstitutional. He offered the motion as a privileged point of order on Tuesday. 

The move caught GOP colleagues by surprise.

“I didn’t know we could do it,” Sen. Ron Johnson (R-Wis.) said of Paul’s motion. “I was surprised he could even raise the point of order. I’m glad he did.”

“When I found out that was in the works, I supported it,” Johnson added. “I always thought this was unconstitutional.”

Sen. Lisa Murkowski (R-Alaska) said she was asking her legislative director the day of the vote about the obscure procedural tactic.

“Constitutional point of order. I was asking my L.D. coming over here. Constitutional? We talk about budget points of order all the time; when was the last time we did a constitutional point of order?” she told reporters after the vote.

Murkowski said the vote illustrated the immense power the Senate rules give to individual senators. 

“Around here, the power of one senator we see demonstrated every day,” she said.

A former Senate Republican aide who is known for his procedural expertise as an early master of the so-called clay pigeon amendment process applauded Paul’s move.

“I was very impressed by it. Props to Rand Paul. He basically ended the impeachment proceedings before they even got started. (A) I was impressed that he did, I thought it was a great maneuver, and (B) I was surprised at how the vote was,” the strategist said. 

Paul said he kept his plan secret up until the day of the vote. He only let the Senate cloakroom know about the point of order on Monday.

“We told the cloakroom staff the day before,” he said, adding the floor staff probably alerted Senate Minority Leader Mitch McConnell (R-Ky.) of the tactic immediately afterward.

Paul said he was informed by the legal analysis of Alan Dershowitz, an emeritus Harvard law professor and constitutional expert who has argued that the penalty for an impeachment conviction — removal from office and disqualification from future office — would not apply to Trump since he is no longer in office.

“His point is that it doesn’t say ‘remove from office or disqualify,’ it says ‘remove and disqualify.’ That doesn’t really work if you’ve already left office,” Paul said.

Paul’s point of order stated that Trump “holds none of the positions listed in the Constitution” and is “a private citizen.”

It also emphasized Leahy’s role in presiding over the trial.

“His presence, and the chief justice’s absence, demonstrates that this is not a trial of the president but of a private citizen,” the motion states.

Several legal analysts have pointed to precedent for impeaching a former public official, just not a president.

Senate Majority Leader Charles Schumer (D-N.Y.) acknowledged in an interview with MSNBC’s Rachel Maddow this week that Roberts didn’t want to preside over the trial of an ex-president.

“He doesn’t want to do it,” the Democratic leader told Maddow.

After 45 Republicans voted against tabling Paul’s motion on Tuesday, many senators predicted Trump’s trial will end in acquittal, especially since only five GOP senators joined with Democrats, falling far short of the 17 needed to reach the conviction threshold of 67.

“I think it’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted,” Sen. Susan Collins (R-Maine) said after the vote.