In an attempt to avoid an impeachment trial, Senator Susan Collins (R-ME) and Senator Tim Kaine (D-VA) are instead working to build support for censuring Trump for his rhetoric before the Capitol riots.

This push began Wednesday, just a day after five Republicans sided with Democrats in a procedural vote Tuesday to dismiss a point of order that an impeachment trial is unconstitutional. The trial is intended to begin this month, and at least 17 Republicans would have to vote to convict Trump.

After Tuesday’s vote, Senator Collins said it is “extremely unlikely that President Trump would be convicted. It seems to me that there is some value in looking at an alternative to proceeding with the trial.” A conviction for impeachment would require 67 votes to convict, while a censure resolution would require only 60 votes.

When the Senate voted on an attempt by Senator Rand Paul (R-KY) to challenge the constitutionality of the trial and Democrats got 55 votes to table his point of order, Paul saw that as a victory, claiming he had 45 votes for his position that only a current president can be convicted of high crimes and misdemeanors. This outcome seems to indicate that the Senate wouldn’t reach the two-thirds supermajority required to convict for impeachment.

Senate Majority Leader Chuck Schumer (D-NY) rejected the idea that the trial should be set aside and said that the Senate would proceed as planned. “Make no mistake—there will be a trial, and the evidence against the former president will be presented in living color,” he said. He opined that the constitutional objections to the trial were a Republican attempt to avoid having to pass judgment on Trump’s actions, and called the overwhelming GOP support for the objection to impeachment “deeply irresponsible.” Senators from both parties said Wednesday that censure would not be the best course of action.

Collins and Kaine hope a censure resolution would allow the Senate to formally condemn Trump’s actions and draw a sizable amount of Republican support. Most Republicans have not been in favor of the impeachment effort, though many have criticized Trump’s actions regarding the day of the riot. A principal argument is that since Trump is no longer a sitting president, impeachment is inappropriate; another is that his actions didn’t rise to the level of inciting an insurrection.

Kaine said, “If we could do something like this and have it be bipartisan, and thereby potentially avoid the trial I think that would be beneficial, but we’re not there yet.” He also said that if they could just win over ten Republicans, combined with 50 Democrats, they could advance a censure motion on the Senate floor.

Other Democrats are skeptical. “Tim’s got some really interesting ideas but I think, you know, Senator Schumer said, we’ll move to a trial,” Senator Mark Warner (D-VA) said. “It’s important we find some form of accountability. I know there are ongoing discussions.”

Senator John Cornyn (R-TX) told reporters that he’s “worried” about setting a precedent that the Senate would “try private citizens, or censure them, after they left office.”

The Congressional Research Service issued a recent report concluding that the weight of scholarly authority agrees that the impeachment process can indeed be applied to individuals no longer in office.

Andrew Jackson was censured by the Senate in 1834, saying he had “assumed upon himself authority and power not conferred by the Constitution and the laws, but in derogation of both” when he tried to impede the Bank of the United States. Three years later, the censure was overturned. This is the only censure of a president in our history.

It seems likely that Trump will be acquitted in an impeachment trial, so Senate Democrats are thinking of a rapid-fire impeachment trial while contemplating alternatives. This re-thinking reflects the increasing urgency among Democrats to move forward with Biden’s governing agenda. After the tally of the vote fell short of the 67 votes needed to convict Trump and potentially bar him from future public office, several Democratic senators have said they were eager to move on to pandemic relief, climate legislation, Cabinet confirmations, and other features of the Biden administration’s to-do list.

Kaine said, “We have to hold President Trump accountable, and then we also have to balance that with the public’s number one demand, which is covid relief.” A speedy trial is becoming more likely as time passes. He is telling Democrats that his resolution would have much the same effect as a conviction: it would condemn Trump and lay the foundation to keep him from returning to the presidency under the terms of the 14th Amendment, Section 3 of which says that no government official can hold office “who, having previously taken an oath….to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.”

The provision was written to keep members of the Confederacy out of government office. It was ratified in 1868 and has been infrequently applied since, so there is little precedent or case law to determine who has the authority to disqualify a president or any other non-congressional official. Kaine says his resolution would echo the amendment’s language.

Harvard Law professor Laurence Tribe says that invoking the 14th Amendment provision is ‘much more complex than some people assume” and that just passing the resolution wouldn’t be sufficient to bar Trump from office. “I worry about the cop-out of a condemnatory censure, which Senators shouldn’t be led to think gets them off the hook of having to convict the former president under the Article of Impeachment.”

Kaine admits that the issue is not ironclad and that even a resolution “leaves the door open for folks to make arguments down the road.”

“This is much, much more serious than anything we’ve ever seen in our lifetime and it’s really the purpose of having articles of impeachment in the Constitution,” said Senator Joe Manchin III (D-WV). “We want to make sure that no one ever does this again, never thinks about doing this again—sedition and insurrection.”

The trial is set to begin on February 9. Trump’s first impeachment trial lasted 21 days.