In an interview Friday morning with syndicated radio host Hugh Hewitt, Florida Sen. Marco Rubio predicted that President Trump will be acquitted in his second senate impeachment trial as early as Sunday.
HH: Since you have been last on, the second impeachment trial of Donald Trump has begun. Earlier this week, you voted not to conduct the trial. I’m not sure if that was on Constitutional or prudential grounds. Have you changed your view since then, given the evidence that’s been presented?
MR: Well, frankly, it was on both grounds. Even assuming Congress did have the Constitutional power to impeach and remove a former official, it shouldn’t, and here’s why. It’s the creation of a new political weapon that will, we will see used. We’ll regret creating that weapon. One day, it’ll be used by a Democratic Senate to disqualify a former cabinet member who wants to challenge a Democratic incumbent. And one day, it’ll be used by a former Republican, future Republican Senate to disqualify a Democratic vice president from running for president. We’ll regret creating that tool. Donald Trump is now a private citizen. And if in fact he has committed crimes as the House managers claim he has, then he is answerable to the civil and criminal courts of this country, not longer to the Senate.
HH: It is true that a president in office may not be prosecuted. It is also true that a former president may be prosecuted for crimes committed in office. You’re absolutely right. Senator, I have always said that Article II, Section 4 is plain on its face that it does not apply to former officials. Do you retain that view that Judge Luttig is the best exponent of, although there are others, and there are also some very find conservatives like Mike McConnell and Chuck Cooper who have argued the other case, I know it’s a divided question. I just don’t think it’s a hard one.
MR: Well, yesterday, we were encouraged to use our common sense. Common sense tells you in the plain reading of those words a couple things. The first is that at that time, not only did the British in England, did they have impeachment trials for former officials, they had impeachment trials for private citizens. And the Constitution made pretty clear in the words, in the plain reading of those words that they rejected that view, because they didn’t include it. It didn’t say former, current and former officials. It just said officials. It, that’s the first point. The second is that the logic tells you that the primary purpose of, the primary remedy of the measure is no longer available. It’s the equivalent of saying, of going to court and saying well, it’s being dismissed because the relief cannot be granted. It’s not a possibility. You can’t give the death penalty to someone who’s died. You can’t remove from office someone who’s no longer in office.
HH: So Senator, have any of your colleagues indicated to you they have changed their preliminary vote from earlier this week? Or do you believe there will be 44 votes to acquit minimum?
MR: I don’t believe there’ll be 44. I mean, I don’t believe that the President will be convicted, but I think there’s this false choice that’s being presented, and that is unless you vote to convict, you are endorsing the events of January 6th, which I rejected minutes after it started, consistently since then. All of the evidence presented this week, virtually all of it, I was aware of. I was impacted by seeing it again. It stirred up anger in me. But if we’ve learned anything from this experience, it should be that we should not be driven to make decisions on the basis of anger, because it leads you to make destructive decisions. And in my mind, it would be destructive to this country to create a new political weapon, which is impeachment used against former officials who are answerable to the courts of this country like any other private citizen.
HH: I agree with all that. I’m just looking for your assessment of the caucus. Do you know of anyone who has changed their position since Tuesday?
MR: I don’t, but again, you know, I haven’t asked everyone. And it’s possible that someone might have in one direction or in another. I just don’t know. Obviously, the arguments are not complete. We’ll see what they present today, and we could go into a bunch of other arguments that some have focused on about, you know, the hypocrisy embedded in all of this. I mean, one of the House managers, I think, tweeted something like boo hoo when Susan Collins was being attacked in her home by people who clearly had they gotten their hands on her, might have done physical harm and things of that nature. But you know, I prefer not to spend too much time on those issues, because frankly, to me, though, the elementary issue is whether we should be using this weapon the way we are or not. And my answer is we shouldn’t.
HH: Now there is one last question I want you to expand on. Of course, the Constitution commits legitimate impeachments to the Senate. And that’s explicit. However, nowhere else in American law, not in civil, not in criminal, not in any administrative proceeding, not even a high school student council disciplinary proceeding do we ever let victims serve as jurors and judges, in the case of Senator Leahy. There’s no way around it here. If you’re going to conduct an impeachment trial, it has to be conducted by the Senate. But has it taught you anything about due process and why we have so many guardrails on the rights of the accused in every other setting both legal and non-legal?
MR: Well, I think better to remind to everybody of is this is not a jury trial. This is not a judicial proceeding. It has judicial-looking elements to it, but it is not, I mean, I read these people that say oh, you’re a juror, you need to sit there. And I thought the best line was Tim Scott’s, which is he’s as impartial as the other 99 people are. You’re absolutely right. I mean, the unique aspect to this one is that every single juror in this case is not just partial. In essence, I think almost every senator has given an indication of how they intend to vote, including the presiding officer. But every single senator was, for the most part, both a witness and a victim of all of this. And so it’s very unique. This is a political process. Impeachment is a political process that has some judicial trapping to it, but it is not a judicial process. It just isn’t.
HH: And quickly, Senator, when do you expect it to be over?
MR: Well, I think, it appears from press reports that the President’s lawyers are going to wrap up today and get to questions, so it’s possible that we could have a vote as early as tomorrow night or maybe Sunday morning, it looks like.