WASHINGTON — Mitch McConnell holds the title of Republican leader.
But it’s Kentucky’s junior senator who is attempting to steer the GOP caucus out of the second impeachment trial of Donald Trump, providing an array of arguments that will likely usher them toward an acquittal of the former president as soon as this weekend.
Rand Paul’s preemptive constitutional challenge to the trial became the initial guiding light for Republicans looking for cover. As the trial bends to a close, he’s one of the few participants taking on the House Democratic impeachment managers in personal terms, charging them with hypocrisy.
This, all while McConnell stays mostly quiet, having deliberated privately whether this process could help disentangle his party from a former president who he sees as a political albatross.
McConnell may still be the strategic brain of the GOP, but Paul is showing he’s much closer to where its heart beats.
“They are a Senate pairing of the old and the new GOP. Rand’s own primary fight a decade ago represented the beginning of the end of institutional power. McConnell has been trying to manage that dynamic — sometimes with success, sometimes not — ever since,” said Dan Bayens, a Lexington-based Republican media consultant who has worked for Paul. “It’s safe to say that McConnell is torn, which is something you just don’t see from him.”
The void left by McConnell, who usually imposes fierce discipline over his caucus, created the opening for the second-term Paul, who is up for re-election next year.
Once the U.S. House impeached Trump for inciting the Jan. 6 insurrection on the U.S. Capitol, Paul began considering the cleanest, most cogent defense to deploy. He mulled over focusing his challenge on the absence of Supreme Court Chief Justice John Roberts, who would usually preside over such a trial but chose not to without explanation. He thought about calling for a boycott of the trial altogether, potentially leaving House impeachment managers presenting their case to many more empty chairs.
But on Jan. 25, after huddling with a small group of aides and reading the scholarship of Harvard professor Alan Dershowitz — a Trump attorney during the first impeachment trial -- Paul settled on the constitutional point of order as the smartest play to set the terms of the debate. Private citizens shouldn’t be eligible for impeachment from an office they no longer hold, he reasoned.
Paul’s team informed McConnell’s office ahead of their move, according to a Paul aide. And while McConnell’s team wasn’t thrilled by Paul’s timing, there wasn’t much they could do to stop him. A McConnell aide did not dispute this account.
But McConnell ended up siding with Paul and 43 other Republicans to form the position that senators continued to cite this week, even as a deluge of compelling visual evidence of the horrors of Jan. 6 spilled into their chamber.
Yes, the riot was unprecedented, gut-wrenching and ghastly, admitted Republican senators, but that wasn’t enough to trigger a conviction on the charge of incitement.
“We want justice. But that doesn’t mean that we can go against what we believe to be constitutionally limited authority,” Sen. Mike Rounds of South Dakota told reporters.
“It should go to the courts, not to Congress where we don’t have a sitting president,” said Sen. Joni Ernst of Iowa, also citing the constitutionality argument.
Even some of his former political allies noted that Paul’s position was a minority one among constitutional scholars.
“I think that Rand is mistaken,” said former Rep. Mark Sanford of South Carolina, who partnered with Paul on legislation to overhaul the Affordable Care Act in 2017. “It’s a very convenient [argument]. It allows people to hook their hat on something in not holding Trump accountable for behavior that these same Republicans would find repugnant if conducted by a Democrat.”
“Now we’re going to come up with a legalistic excuse to say, “well now that he’s out of office, there’s nothing we can do,” Sanford added. “It’s the excuse the Republicans have been looking for.”
The Democratic impeachment managers ostensibly had put the constitutional issue to bed, given that the Senate voted to continue with the trial.
But Paul didn’t stop there. He took to Twitter to personally attack lead impeachment manager Rep. Jamie Raskin of Maryland for challenging Trump’s election in 2016 and Rep. Eric Swalwell of California, “a guy accused of consorting with a Chinese spy.”
On Friday morning, it was New York Gov. Andrew Cuomo who Paul saw as a ripe target for impeachment hypocrisy, given his administration’s suppression of reporting COVID-19 deaths in the state’s nursing homes.
For Paul, the idea was always to make it less about Trump or the insurrection, two areas he’s talked little about.
Paul now predicts there will be at least 44 GOP votes for acquittal, leaving Democrats far short of the 67 votes necessary for conviction.
There’s still a sprinkle of intrigue around McConnell’s final vote, given his aides’ clandestine signal of his readiness to wash his hands of the 45th president.
But a vote to convict would likely risk too much — his hold on his caucus, his leadership position and a shot at becoming Majority Leader one more time, and even his feeble popularity in Kentucky.
Plus, he’s already taken Paul’s lead on the constitutional question.
Asked if there was a way for a senator to deem the trial unconstitutional, but ultimately vote for conviction on the merits of the case given the Senate’s sanctioning of the trial, Dershowitz replied with a succinct, “No.”
