GOP Senator Rand Paul’s bid to question the constitutionality of trying a former president was blocked on a 55-45 vote. That probably serves as a rough proxy for the eventual verdict, and it’s well short of the two-thirds majority that would be necessary for conviction.

“Forty-five votes means the impeachment trial is dead on arrival,” Paul said to reporters immediately after the Senate acted.

Senator John Thune, a member of GOP leadership, said most Republicans still will weigh the evidence at the trial and decide whether Trump deserves to be convicted. “But I think this was indicative of where a lot of people’s heads are,” he said.

The Republican senators voting with Democrats were Pat Toomey of Pennsylvania, Mitt Romney of Utah, Lisa Murkowski of Alaska, Ben Sasse of Nebraska and Susan Collins of Maine.

That doesn’t necessarily indicate any or all of them would back convicting Trump, and Collins said, “It’s pretty obvious from the vote today that it is extraordinarily unlikely that the president will be convicted.”

Senate Majority Leader Chuck Schumer called Paul’s motion “ill-founded” and “premature.” He said history and precedent are clear that the Senate can try a president or other official who has left office.

The question has never been tested in the courts, but many legal scholars and several lower-level impeachments in the past suggest the Senate retains the power to put Trump on trial even after his term ends.

But it offers a political argument that could give Republicans a chance to avoid having to cast judgment on Trump’s Jan. 6 actions, when he encouraged a crowd that went on to storm the Capitol. The ensuing riot left five people dead, including a police officer.

“The question of whether or not you can try and impeach and convict a private citizen, constitutionally is a — you know, it’s on a very shaky foundation,” Thune said afterward. “I think most of our members concluded that.”

Senator Rob Portman said he voted against tabling Paul’s point of order because he wanted a debate on the constitutional question.

“I do have questions about the constitutionality of holding a Senate trial and removing from office someone who is now a private citizen,” he said in a statement. He said he will listen to evidence at the trial and “make a judgment based on the Constitution and what I believe is in the best interests of the country.”

Senate Republican Leader Mitch McConnell also voted against tabling Paul’s effort despite having blocked an effort by Democrats to hold the trial while Trump was still in office. McConnell has previously said he was undecided on whether to convict Trump, and he has not yet explained his vote.

Other GOP senators, including Joni Ernst of Iowa, Roger Wicker of Mississippi and Mike Braun of Indiana, have also questioned whether Trump can be tried, suggesting a growing number could align to acquit him on that basis.

Schumer on Monday dismissed arguments that the Constitution bars the Senate from trying a former president, calling it a “fringe legal theory.” He cited the research of numerous legal scholars and a precedent from 1876 when an impeachment trial was held for the secretary of war under President Ulysses S. Grant, even though he had resigned to avoid the proceedings.

Murkowski said before the vote that her review of the issue “has led me to conclude that it is constitutional, in recognizing that impeachment is not solely about removing a president. It is also a matter of political consequence.”

Jurors Sworn

Earlier Tuesday, Senate President Pro Tempore Patrick Leahy swore in senators as jurors for the trial. Leahy, the most senior Senate Democrat, will preside over the trial, the main part of which will begin the week of Feb. 8 after House prosecutors and Trump’s defense team file briefs.

Trump has hired Butch Bowers, a South Carolina attorney who has worked on some high-profile political cases and was recommended to him by GOP Senator Lindsey Graham.

“He’s got a legal team he’s trying to organize and he just needs to keep doing what he’s doing and trial will be over in a couple of weeks, I think,” Graham told reporters Tuesday, noting that he spoke to the former president the night before.

The House voted to impeach Trump on Jan. 13, with 10 Republicans joining all 222 Democrats in favor. The single article charges Trump with inciting the crowd of his supporters that rioted at the Capitol, disrupting the certification of President Joe Biden’s victory in the November election.