For blatantly partisan political reasons, most Republican were willfully wrong about the Constitutionality of impeachment; but in the end, it did not matter: Justice, albeit not conviction, was done.
Senate Republicans eager to condemn Trump without voting to convict him during this, his second impeachment trial, found a convenient if disingenuous way to do so. They seized upon the notion that the impeachment itself is unconstitutional.
I say disingenuous because even if you grant that this is a legitimate point of view, Senate Republicans—and Democrats—are hardly sticklers for a narrow and cramped legalistic reading of their Constitutional authority or the president’s Constitutional authority.
Indeed, since at least the New Deal, the vast majority of elected officials have adopted a wide and expansionary view of their Constitutional authority. Yet, curiously, when it came to Trump’s second impeachment, Senate Republicans suddenly found that the Constitution prohibited them from acting.
The Constitution prohibited them from convicting a president who, plainly and obviously, was guilty of inspiring or provoking a violent attack on Congress and who, plainly and obviously, was guilty of a gross dereliction of duty as that attack transpired.
How politically convenient this was for Senate Republicans eager to find an excuse—any excuse—to shirk their Constitutional duty. Thus 43 of them voted to acquit Trump, while only seven voted to convict.
Plausible Deniability. How is this possible? How could Senate Republicans argue with a straight face that the Constitution prohibited them from impeaching and convicting Trump?
After all, Article I, Section 2 of the Constitution gives the House of Representatives “the sole power of impeachment.” Article I, Section 3, likewise, gives the Senate the “sole power to try all impeachments.”
That seems straightforward and unambiguous. Case closed, no? Trump’s impeachment trial is perfectly legitimate and Constitutional.
Well, here’s the rub: when the Senate trial began, Trump already had left office. And the Constitution, some scholars argue, only allows for the impeachment of incumbent officials, not former officials.
Senate Minority Leader Mitch McConnell (R-Kentucky) expressed this argument in full-throated fashion shortly after the Senate voted 57-43 Saturday (Feb. 13, 2021) to acquit Trump of “incitement of insurrection.”
McConnell began his remarks by unequivocally condemning Trump in no uncertain terms. In fact, an uninformed reader might think that McConnell is explaining why he voted to convict Trump, but no.
Although, “there is no question that President Trump is practically and morally responsible for provoking the events of that day,” McConnell said, “we have no power to convict and disqualify a former officeholder who is now a private citizen.”
But of course, Trump was not impeached for what he did as a private citizen; he was impeached because of his conduct as President of the United States. And the Constitution does not specify that only incumbent officials can be impeached. Instead, it clearly allows for the impeachment and conviction of former presidents and former officials.
Impeachment Authority. That is because, as Chuck Cooper observes, one of the Constitutional penalties for an impeached and convicted official is “disqualification to hold and enjoy any office of honor, trust or profit under the United States” (Article I, Section 3).
That punishment can be imposed only on former officers. That is because Article II, Section 4 is self-executing: A convicted officeholder is automatically removed at the moment of conviction.
The formal Senate procedures for impeachment trials acknowledge this constitutional reality, noting that a two-thirds vote to convict “operates automatically and instantaneously to separate the person impeached from the office.”
The Senate may then, at its discretion, take a separate vote to impose, by simple majority, “the additional consequences provided by the Constitution in the case of an impeached and convicted civil officer, viz: permanent disqualification from elected or appointed office.”
Thus a vote by the Senate to disqualify can be taken only after the officer has been removed and is by definition a former officer.
Given that the Constitution permits the Senate to impose the penalty of permanent disqualification only on former officeholders, it defies logic to suggest that the Senate is prohibited from trying and convicting former officeholders [emphasis added].
Nonsensical Reading. In short, it is simply nonsensical to suggest that the Constitution does not allow for the impeachment and conviction of former presidents and former officials.
To arrive at such a conclusion, you have to read one provision of the Constitution (Article II, Section 4) legalistically and out of context, while divorcing it from its necessary and obvious relationship to a second provision of the Constitution (Article I, Section 3).
As the House impeachment managers pointed out, if McConnell’s nonsensical view of the Senate’s impeachment authority were adopted, it would mean that a president could commit impeachable offenses and then quickly resign to avert impeachment.
It would mean a “January exception” that would allow a president to commit impeachable offenses in his final days or weeks in office safe in the knowledge that Congress lacks sufficient time to impeach and convict him. It is inconceivable that this is what our Founding Fathers intended.
Founding Fathers. And in fact, as Princeton Politics Professor Keith E. Whittington notes:
For the Founders, it would have been obvious that the “power to impeach” included the ability to hold former officials to account.
The impeachment power was imported to America from England, where Parliament impeached only two men during the 18th century, both former officers. No U.S. state constitution limited impeachments to sitting officers, and some allowed impeachment only of former officers.
In 1781 the Virginia General Assembly subjected Thomas Jefferson to an impeachment inquiry after he completed his term as governor.
As the sixth President of the United States, John Quincy Adams, put it:
I hold myself, so long as I have the breath of life in my body, amenable to impeachment by this House for everything I did during the time I held any public office.
Historical Precedent. There is, of course, very little case law or precedent governing presidential impeachments. Only three presidents, after all, have been impeached, and Trump’s second impeachment was just the fourth impeachment in our nation’s entire 245-year history.
There is, though, one notable precedent, and that is the 1876 impeachment of Secretary of War William Belknap.
Belknap was impeached for malfeasance while in office, but resigned before the House impeached him. Nonetheless, the Senate asserted jurisdiction over his case and tried him for malfeasance in accordance with the House articles of impeachment.
Jurisdictional Question. The Senate also asserted its jurisdiction over Trump’s case after Sen. Rand Paul (R-Kentucky) introduced a procedural motion to dismiss the case on the grounds that the hearing was unconstitutional because Trump no longer was in office.
McConnell voted for Paul’s procedural motion; but as Quin Hillyer points out: “McConnell was [nonetheless] not duty-bound to vote to acquit Donald Trump if he thought the trial wasn’t constitutionally proper.”
For the purposes of impeachment, Hillyer explains, the Senate acts as a tribunal and thus is analogous to a federal court or judicial body. “Think of it this way,” he writes:
If a three-judge panel of a federal appeals court rules that the court lacks jurisdiction on a certain case, but the whole appeals court en banc decides that jurisdiction is indeed proper and thus sends the case back to the panel to decide on the merits, then, by gosh, the panel must decide on the merits.
Its judgment of jurisdictional constitutionality has been overruled by a higher authority.
Each individual senator is in somewhat the same position as that three-judge panel. His oath to the Constitution includes an oath to respect a higher constitutional authority—and, in this case, the full Senate is a higher constitutional authority than the individual senator is…
In other words, once the whole Senate, acting according to its agreed-upon rules, determines that it does have constitutional jurisdiction, then the individual senators should accept that determination and adjudge the impeachment solely on the merits.
In sum, the constitutional question becomes moot.
Put another way, even if McConnell genuinely believed that the Senate’s trial of Trump was unconstitutional, the entirety of the Senate ruled against him and decided otherwise. Thus that question no longer had any standing or relevance to the Senate’s deliberations.
McConnell’s task, then, was to address the sum and substance of the charges leveled against Trump. It was not his task, or any senator’s task, to revisit a jurisdictional question that the Senate already had decided.
The bottom line: if McConnell and other Senate Republicans wanted to convict Trump, they had more than ample Constitutional authority to do so. The truth is they chose not to convict Trump because they viewed Trump’s conviction as too politically problematic and difficult for them and the Republican Party.
That is, they chose their perceived partisan political priorities over the imperatives of the Constitution while pretending to do the exact opposite. Shame on them. These senators are profiles in cowardice, and their constituents and donors should remember this come election day.
The good news, though, as David Frum notes, is that “a clear American majority—including a sizable part of the Republican Senate caucus—[voted]… to condemn Trump as an outlaw and a seditionist…
The 57 votes against Trump silence any complaint that he was condemned on some partisan basis or by some procedural unfairness. It crushes his truculent lawyers’ claim that the argument against Trump was mere chicanery
The senators who voted to acquit are the ones likely to justify their decision on some strained, narrow, technical ground. The number who truly believed Trump innocent of the charges brought against him is surely smaller than the 43 who voted to acquit.
Statements by senators such as Mitch McConnell and Rob Portman show that their votes did not match their thoughts.
In sum, Donald Trump has been thoroughly discredited. His treasonous and insurrectionary conduct has been catalogued for history and for all to see. His failure to live up to his oath of office to ensure that the laws of the land were fully and faithfully executed has been thoroughly documented.
As a result, Trump is a spent political force in American politics. He won’t win another national or presidential election, as even the Trump-friendly Wall Street Journal editorial board acknowledges.
What remains unclear, though, is whether Trump is a spent political force within the Republican Party. Forty-three GOP Senators seem to think not, and that does not bode well for the party of Lincoln, Coolidge and Reagan.
Time will tell and we will see. Stay tuned.
Feature Photo credit: For better and for worse, GOP Senators Mitch McConnell and Rand Paul, both from Kentucky, played instrumental roles in the Republican Party’s posture toward Trump’s second impeachment (courtesy of Donkey Hotey, Forward Kentucky).