WASHINGTON – 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 Kaine’s proposal is an acknowledgement that the Senate is unlikely to convict Trump of inciting the riot, a troubling prospect for many lawmakers who believe Trump must be held accountable in some way for the Capitol attack. If he were convicted, the Senate could then hold a second vote to ban him from office.
A censure would not hold the power of a conviction, but it would put the Senate on record as disapproving of Trump's role in the insurrection, which came as Congress was counting electoral votes to confirm Democrat Joe Biden's victory. Just before Trump's supporters broke through windows and busted through the Capitol's doors, he gave a fiery speech outside the White House urging them to “fight like hell” to overturn his defeat.
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. It was unclear, though, whether other Democrats, or any Republicans, would sign on to Kaine’s proposal. 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.
An angry mob of Trump supporters wanting to stop Congress' confirmation of Biden's victory invaded the Capitol, ransacking hallways and offices 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.
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. A conviction would need the support of two-thirds of the senators, or 67 votes. Getting there would require all Democrats and 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.”
Later in the day, Kaine said on CNN that the resolution would say the attack “was an insurrection and that President Trump gave aid and comfort to the insurrectionists.” He said it would also bar Trump from future office, though it is unclear if such a vote would be enforceable.
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 hold Trump to account 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 procedural motion from Kentucky Sen. Rand Paul, defeated on a 45-55 vote, 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.
Some said the censure resolution was too late because Democrats had 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."
Some Democrats also appear wary.
Illinois Sen. Dick Durbin, the No. 2 Democrat in the Senate, said doing censure after impeachment is “possible, but I don’t know how much time that involves” and how it would work. He said there were “a lot of questions to be answered” about the idea.
Earlier Wednesday, on the Senate floor, Durbin 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.”
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. 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.