Can Rand Paul derail the Senate trial before it begins? UPDATE: Fails, 55-45

Almost certainly the answer is no, but Rand Paul can take all of the suspense out of it. Senate Republicans have begun rallying around a constitutional argument that the upper chamber lacks jurisdiction to try private citizens, even if impeached while in federal office. Heavy con-law hitters like Jonathan Turley, Alan Dershowitz, and J. Michael Luttig have provided them with ammunition for opposing any trial of Donald Trump.

Now Paul wants to dispense with the trial by forcing a point-of-order vote sometime today:

The Kentucky Republican plans to raise a point of order with the Senate parliamentarian Tuesday afternoon, just moments before senators are set to be sworn in for Trump’s second impeachment trial. His attempt is certain to fail, but the final tally could foreshadow the possibility that Trump will be convicted, which requires support from two-thirds of the chamber.

“I think there will be enough support on it to show there’s no chance they can impeach the president,” Paul told reporters. “If 34 people support my resolution that this is an unconstitutional proceeding, it shows they don’t have the votes and we’re basically wasting our time.”

True enough, but I’m not sure it tells us much that we can’t already guess. Democrats will have 50 votes to defeat it, and Kamala Harris on hand to break any ties. We’re pretty sure that there won’t be enough Senate Republicans for a conviction already; there may only be five or six willing to cast that kind of a vote, which would be historic enough. Dershowitz was Trump’s impeachment attorney the first time around, so his opinion this time doesn’t provide much cover for the jurisdictional demurral, but Turley and Luttig have a bit more heft. All this does is put everyone on the record just a bit earlier than otherwise.

Or is that all this will do? A point-of-order vote might end up being a double-edged sword for Republicans. The arguments on jurisdiction rest on the lack of constitutional text regarding those impeached while still in office but who resign or whose office expires. There’s no specific jurisdiction, but also no explicit bar on jurisdiction either. That leaves this basically as constitutional terra incognita, and Congress would have to determine its authority in this matter — at least for now. If the Senate votes to deny Paul’s point of order, it might serve as a formal assignment of jurisdiction that could end up lending credibility to the trial in the end.

Of course, Trump could appeal this to the Supreme Court at that point, or in the extremely unlikely event that the Senate convicts him. But without explicit text in the Constitution barring the Senate from holding this trial — and with the unchallenged William Belknap precedent — how likely would the court be to take up this question? After all, Congress is ultimately responsible to voters for its actions, and if they abuse the impeachment and trial process, voters can hold them accountable for it. A Senate vote explicitly setting this jurisdiction might scare some justices off from involving themselves in this fight.

The best argument against it might be the lack of limit in assuming this jurisdiction, at least in a reductio ad absurdum. What’s to prevent Congress from impeaching former presidents too? That’s not entirely a hypothetical, as Rep. Matt Gaetz suggested impeaching Barack Obama a little over a year ago for spying on Trump’s campaign:

If the Senate can try a former president for actions he conducted while in office, why can’t the House impeach a former president for actions he conducted while in office? Absent explicit constitutional text to the contrary, the Senate’s jurisdictional decision certainly opens up that possibility. By taking out the jurisdictional limitation of Congress over active federal officers, it opens up a big can of worms. Shall we proceed with the impeachment and conviction of Richard Nixon? How about Warren Harding? Congress can busy itself with impeachments as Soviet-style denunciations and rehabilitations based on which party controls the legislature.

Paul might get what he wants out of this point-of-order motion. He might get more than he bargained for, too. Here’s a final thought: why didn’t anyone raise a point of order on January 6th when Republicans tried to usurp state sovereign authority to certify their own electors in the presidential election?

Update: I’ve added a couple of sentences above to clarify two points shortly after initial publication. Plus, the solution here is pretty obvious. Congress and the states need to amend the Constitution to make jurisdiction explicit and limited. The failure of imagination before now is understandable, but the need is now clear for precision.

Update: Paul didn’t stop the trial, but he made his point about its futility:

The only mild surprises here are Pat Toomey, who just announced his retirement, and Ben Sasse, who might well draw a primary challenge if he votes for conviction. Democrats have to find at least 12 more Senate Republicans to convict, and they have to convict first before being able to proceed to disqualification.

McConnell notably voted with Rand Paul, so it doesn’t appear he’ll be voting to convict.