But that chance seemed to dwindle on Tuesday when 45 out of 50 Senate Republicans voted in a narrowly defeated bid to terminate the trial on the grounds that it was unconstitutional. Mr. McConnell was among the 45.
It’s not the only option
Given the obstacles to an impeachment conviction, some Democrats have discussed using Section 3 of the 14th Amendment as an alternative avenue of accountability. Ratified after the Civil War to prevent former Confederates from returning to power, it bars any person who has sworn an oath to the Constitution and subsequently “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof” from ever holding office again.
Compared with impeachment, the 14th Amendment is simpler and more likely to work, the historian Eric Foner argues in The Washington Post, since it requires only a majority vote in both houses, not two-thirds of the Senate, as with impeachment. “That means it would rely on fewer G.O.P. members who feel they need to stay on the good side of Trump’s base,” he writes. “It might even be more palatable to Republicans than impeachment, the most infamous and damning answer to a reckless president.”
But this strategy raises thorny legal questions of its own. Senator Dick Durbin of Illinois, the majority whip, told reporters that he was skeptical of invoking the 14th Amendment because it doesn’t specify how to determine whether someone “engaged in insurrection” and whether that determination requires a court conviction.
As for the first issue, Philip Zelikow, a professor of history at the University of Virginia, argues in Lawfare that regardless of whether Mr. Trump can be said to have “engaged in insurrection” against the Constitution, he clearly gave “aid or comfort” to one by encouraging his supporters to “fight like hell” at the Capitol to “stop the steal.” As for the second issue, Mr. Zelikow believes that Congress is entitled to disqualify Mr. Trump without any involvement from the courts.
But other legal scholars disagree, arguing that an interpretation of the 14th Amendment that allows Congress to unilaterally bar individuals from office is ripe for abuse. “It would be far too easy for bare majorities to suppress political minorities,” Daniel Hemel, an assistant professor at the University of Chicago Law School, writes in Lawfare. “Simply invoking the word ‘insurrection’ would allow one party to exclude members of another from public office for life.”
Another option, of course, is for Congress to simply do nothing. “Attention is what Trump lives for,” John Bolton, Mr. Trump’s former national security adviser, writes in National Review. “If his foes really wanted to punish him, if they wanted to inflict the most terrible fate possible, they would simply ignore him.”