Passage of time could be factor in Trump Senate trial

A growing number of Republican senators say they oppose a second impeachment trial of former president Donald Trump, which could help him avoid conviction on the charge that he incited the storming of the US Capitol on Jan 6.

House Democrats, who will walk the impeachment charge of "incitement of insurrection" to the Senate on Monday evening, are hedging that Republican denunciations of Trump after the Jan 6 riot will translate into a conviction and a separate vote to prohibit Trump from holding office again.

But the outrage of some Republicans appears to have ebbed since then now that Trump's presidency is over.

"I think the trial is stupid; I think it's counterproductive," Senator Marco Rubio, a Florida Republican, said Sunday. He said that "the first chance I get to vote to end this trial, I'll do it" because he believes it would be bad for the country and further inflame a raw partisan divide.

Arguments in the Senate trial will begin Feb 9. Leaders in both parties agreed to the delay to give Trump's team and House prosecutors time to prepare and the Senate the chance to confirm some of the Cabinet nominees of President Joe Biden, who took office last week. 

"It will be a fair trial, but it will move relatively quickly," Senate Majority Leader Chuck Schumer told a news conference Sunday in New York, adding that it should not take up too much time because "we have so much else to do".

Democrats say the extra days before the trial will allow for more evidence to come out about the rioting by Trump supporters who interrupted the Electoral College vote count affirming Biden's Nov 3 election victory.

The Democrats would need the support of 17 Republicans to reach the required two-thirds majority of 67 senators required to convict Trump.

When the House impeached Trump on Jan 13, Senator Tom Cotton, Republican of Arkansas, said he didn't believe the Senate had the constitutional authority to convict Trump after he had left office.

On Sunday, Cotton said "the more I talk to other Republican senators, the more they're beginning to line up" behind that argument.

"I think a lot of Americans are going to think it's strange that the Senate is spending its time trying to convict and remove from office a man who left office a week ago," Cotton said.

Democrats pointed to an 1876 impeachment of a secretary of war who had already resigned and to opinions by legal scholars. Democrats also say that a reckoning of the Jan 6 uprising at the Capitol after Trump told supporters to "fight like hell" against the election results is necessary for the country to move forward and ensure such a siege never happens again.

Senator Mitt Romney, Republican of Utah, said Sunday that there is a "preponderance of opinion" that an impeachment trial is appropriate after someone leaves office.

"I believe that what is being alleged and what we saw, which is incitement to insurrection, is an impeachable offense," said Romney, the only Republican to vote to convict Trump, on one of two impeachment articles when the Senate acquitted the then-president in last year's trial. "If not, what is?"

Senator Rand Paul, a Kentucky Republican, questioned whether the trial would be legitimate if Supreme Court Chief Justice John Roberts did not preside over it, as he did in the first trial of Trump.

"If the Chief Justice isn't coming, I think it's an illegitimate procedure. It isn't a real impeachment, it's going to be a fake, partisan impeachment," Paul tweeted Friday.

Appearing on Fox News later on Friday, Paul said "that the chief justice is not going to be asked, but the reason he's not going to be asked is he's privately said he's not supposed to come unless it's an impeachment of the president".

It is not clear if Roberts will preside.

"The question should be whether the impeached officer was president at the time of impeachment. Here, he was, so Roberts presides," University of Texas law professor Steven Vladeck, a constitutional scholar, wrote on Twitter on Jan 13.

"And if it seems odd to you that the Constitution doesn't speak to this scenario, here's a better one: Who presides over the trial if the *Vice President* is impeached? If nothing else, it's an object lesson in how ambiguous so much of the Constitution is (and always has been)," Vladeck wrote. 

Senate Republican leader Mitch McConnell, who said last week that Trump "provoked" his supporters on Jan 6, has not said how he will vote. 

Senator John Cornyn, Republican of Texas, tweeted Saturday: "If it is a good idea to impeach and try former Presidents, what about former Democratic Presidents when Republicans get the majority in 2022? Think about it and let's do what is best for the country."

Representative Madeleine Dean, a Pennsylvania Democrat and one of House Speaker Nancy Pelosi's nine impeachment managers, said Sunday, "I think you will see that we will put together a case that is so compelling because the facts and the law reveal what this president did.

"I mean, think back. It was just two-and-a-half weeks ago that the president assembled a mob on the Ellipse of the White House. He incited them with his words. And then he lit the match," she said.

Agencies contributed to this story.