On Monday, the House of Representatives will deliver an article of impeachment to the Senate against former President Trump. The House voted in favor of accusing Trump of high crimes and misdemeanors for inciting the mob that assaulted the Capitol on January 6, 2021. Senators will be sworn-in as members of the impeachment court on Tuesday, and the impeachment trial is scheduled to begin on February 8.

Since the decision was made to hold a second impeachment trial in the Senate (was there really any question it would happen?) there has been no shortage of elected officials weighing in on if this is the right path to take. Is this the best way to hold the former president responsible for the violent riot on Capitol Hill? Senator John Cornyn, the senior senator from Texas, offered his opinions in an interview with a local CBS affiliate in Houston Friday.

It’s important to remember that an impeachment trial is a political act, not a legal trial. The consequences are political in nature. In the case of Trump’s second impeachment, it is easy to believe that it is being carried out solely for the reason of stopping Trump from running again in 2024. Senator Cornyn says it strikes him as “a vindictive move” and he’s probably right. Donald Trump is no longer the president and legal scholars are questioning if it is even constitutional to impeach a president who is no longer in office. The constitution doesn’t specify if a president has to be in office or not to be impeached. John Cornyn calls it “unprecedented”. Is losing the election punishment enough? That’s a question Cornyn asks. He doesn’t think Trump is blameless because any large crowd is bound to have some bad actors.

“This is unprecedented,” Sen. John Cornyn said. “Never before has there been a trial of a person who used to be president but is no longer president. And it just strikes me as a vindictive move, you know, say what you will about the president’s role in a speech he gave. He’s no longer president. He lost the election. That used to be punishment enough in our politics.”

“I think it was a big mistake to give that speech in front of this large crowd and then to tell them to go to the Capitol, because unfortunately, when mobs get together, the lowest common denominator usually defines that group of people,” Cornyn added. “And that’s what happened here. I think what we need to hear is what really the president intended, because incitement is really about your intention. Are you trying to rally people to violence, which would be the definition of incitement to riot, or are you exercising your free speech rights? We need to hear some more detail about that. And the burden of proof is on the impeachment managers to produce that kind of evidence if they expect to get a conviction.”

“Based on what we saw on TV and social media and what we saw in person. I’ll reserve judgment until after I hear their case,” Sen. Cornyn said.

That’s the tricky part – how will impeachment managers prove a deliberate intention from Trump to incite a riot on Capitol Hill? If you listen to his words at the rally preceding the riot, he speaks about fighting and never giving up, which are pretty much standard words in his speeches. The House impeached Trump on a mostly party-line vote in December 2019 with three Democrats voting against impeachment and one Independent voting in favor of it. In the Senate, Mitt Romney was the only Republican to vote in favor of impeachment and on only one of the two articles. Trump was acquitted in February 2020 in the Senate.

The second trial only looks at one article and it was quickly passed in the House with ten Republicans joining all 222 Democrats in favor of impeachment. All of that happened on January 11, with tempers and feelings still raw from what we witnessed on January 6. While several Republican senators were quick to say they, too, would likely vote in favor of impeachment in Trump’s second trial because of the violent riot that happened after the rally with Trump, now it appears the senators are taking a more measured tone. Senate Democrats need 17 Senate Republicans to vote with them. A 2/3 majority vote is needed – 67 votes in favor of impeachment. A simple majority would then be needed to vote in favor of Trump never holding office again.

I have no doubt that all the Democrats will vote in favor of impeachment. However, I don’t think that 17 Republicans will vote with them. Even Mitt Romney sounded cautious on a Sunday morning show today, only saying he’ll wait and listen to all the evidence presented at the trial before making his decision. I think most Senate Republicans will think like Cornyn is thinking right now – isn’t losing the election enough? Some Republicans may vote against Trump, maybe some of the usual suspects like Romney, Collins, Murkowski. Others may, too, but I think that the probability of not reaching the magic number of 17 means others may join in and yet not suffer consequences in their next elections because the Republicans not voting yes will provide them cover. In other words, those inclined to vote yes to make a statement will be emboldened to do.

Can House impeachment managers make the case that Trump’s intention was to stir up a violent mob on Capitol Hill who rushed the building and kill five people in doing so? A lot of other people were injured on the scene, too. It mustn’t happen again. The question is whether a simple majority of senators decide if Trump runs for office again, assuming he is impeached a second time, or do voters decide that?