The Senate’s 55-45 procedural vote on Tuesday does not prevent the House from viewing what they see as a clear case against Trump for his role in inciting insurgents. There are still important questions to decide before the trial next month: For example, you have not yet made a final decision whether to call witnesses. They are preparing for the possibility that they will not have witnesses – but they can choose to use them if, according to sources, they can find a witness willing to volunteer.

Even without witnesses, the Democrats are considering using evidence from video and social media to illustrate how Trump’s words, actions and tweets motivated the rioters to attack the Capitol, the sources say.

But Senate Democrats say the case brought by House executives can still sway some Republicans, especially if they can put in witnesses that would confirm Trump’s mindset and actions in the lead up to the Jan. 6 Capitol riots.

“I think the heart of this case is Trump’s fire and stimulating words, the words from his own mouth,” Connecticut Democratic Senator Richard Blumenthal told reporters. “But his intent to cause harm, injury, and maybe even death, may come from witnesses who were with him when he watched the attack on the Capitol. So witnesses can confirm and powerfully document what we know but they have to prove it. “

One aggravating factor for the House impeachment team is whether or not potential witnesses would be willing to be called – especially those who have been to the White House. The House’s impeachment managers want to avoid any type of legal battle over witnesses that the House faced during Trump’s initial impeachment.

Senator Angus King, the independent Maine negotiating party with Democrats, said Tuesday it was an open question whether executive privilege would still apply to former White House officials after Trump stepped down and could be called as potential witnesses. King argued that such a testimony could shed some light on the President’s thinking during the trial.

“It will either be witnesses or documents and what was given along the way of intelligence,” King said.

The opening day of Trump’s second impeachment trial showed how high the bar is for House Democrats to get close to the votes required for conviction. Only five Republicans voted with Democrats to thwart Paul’s procedural motion.

While not every Republican who voted with Paul said the process was totally unconstitutional, the 55-45 vote was as clear a sign as anyone that the way to the 67 votes that were needed to condemn Trump and Keeping him from running again was next to impossible. Paul claimed after the vote that the process was over before it started.

Even one of the Republicans, who voted with Democrats and is open to condemnation of Trump, said the writing was on the wall.

“Do the math. I think the president is extremely unlikely to be convicted,” said Maine Senator Susan Collins, one of the five Republicans who break up with Paul.

The Senate’s GOP focuses on constitutional arguments

After the procedural vote on Tuesday against Paul’s rules of procedure that the process was unconstitutional, the Senate postponed the impeachment process until February 9, until the arguments begin.

Senate Republicans have come together for the past few days on the argument that the process is unconstitutional and given them the opportunity to roll back the impeachment of the House Democrats without condoning Trump’s behavior when rioters attacked the Capitol on Jan. 6 and Broke through the very chamber in which the impeachment process took place will take place.

“I think it showed impeachment on arrival is dead,” Paul said of the vote he forced Tuesday. “If you voted it would be unconstitutional, how on earth would you ever vote to convict anyone?”

Democrats argued that Republicans are circumventing their responsibility to hold Trump accountable for his behavior by claiming the process is unconstitutional. “They don’t want to be held accountable in this vote, so they will try to make it another Constitution-only argument,” said Senator Dick Durbin, an Illinois Democrat.

Prior to Tuesday’s vote, there were signs that most of the Senate Republicans would remain united. At their party lunch on Tuesday, Senate GOP leaders met Jonathan Turley, one of the leading conservative legal scholars, who argued the trial was unconstitutional.

While Turley has argued against the impeachment of a former president, the impartial Congressional Research Service wrote this month that “most of the scholars who have carefully examined the issue have concluded that Congress has the power to impeach officials to expand that are no longer present office. “

Fact check: is it constitutional for Trump to go to court after leaving office in the Senate?

Alaska GOP Senator Lisa Murkowski, who said Trump committed criminal acts and voted against Paul on Tuesday, expressed frustration with the vote, which took place before the trial began – with less than a day’s notice .

“I find it a little unfortunate that we had this very spontaneous vote on an extremely important matter without the deliberate debate and analysis. People had to make really quick decisions,” Murkowski told reporters on Tuesday. “I’m not saying there is evil will, but I think this is so significant that it deserves greater consideration by this body, and I think what you’ve seen now is that people have been forced to to take a quick position. Whether that is or not, changes in the further course remain to be seen in my opinion. “

Senator Rob Portman, a Republican from Ohio, downplayed the importance of Tuesday’s vote, saying that he viewed it only as a procedural motion and not a statement of whether or not the process was constitutional.

“I want to hear how this is discussed,” said Portman. “I have constitutionality and practical precedent questions, but I want them to be educated and we will hear them.”

But the Senate GOP leaders remained united with Paul. Senate Minority Chairman Mitch McConnell, who has expressed his openness to hearing the impeachment arguments, voted with Paul on Tuesday in a sign asking questions about the constitutionality of the process. Missouri Senator Roy Blunt, a member of the GOP leadership standing for re-election in 2022, said after the vote he found the process unconstitutional.

“I believe the constitutional purpose of impeachment is to remove a president from office and not punish a person after they leave,” Blunt said in a statement. “No consideration was given to indicting President Nixon when he stepped down in 1974. The Constitution has not changed and Congress should not set a new, destructive precedent.”

Several GOP Senators have cited the fact that Chief Justice John Roberts will not lead the trial – instead, Vermont Senate President Pro-Tempore Pat Leahy – as the clearest sign that the trial is failing constitutional scrutiny.

“That would give me a pretty clear signal of what Roberts thought of the whole thing,” said Senator Chuck Grassley, a Republican from Iowa.

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