The trial is done and the verdict is in. Trump was not convicted, despite more members of his party having voted guilty than in any previous presidential impeachment, it fell short of the two-thirds required by the Constitution. It was unsurprising, yet disappointing. I realize that some (here) still believe that the election was stolen and the Trump Insurrection of ’21 was well-intended patriots defending their nation. That, too, is over. Trump lost the election, and this is no longer a tolerable discussion.
It’s unclear whether a switch in time would have made enough of a difference to change the outcome, but had Minority Leader Mitch McConnell told his caucus he would vote to convict, it likely would have swayed, or freed more likely, others to do the same. He did not, but his rationale wasn’t that Trump was not guilty for “provoking” the storming and ransacking of the Capitol, but that the Senate could not convict a president who was no longer in office.
“There’s no question — none — that President Trump is practically and morally responsible for provoking the events of the day,” Mr. McConnell, the Kentucky Republican and minority leader, declared Saturday afternoon in an anti-Trump diatribe so scathing that it could have been delivered by any of the nine House prosecutors seeking a conviction.
The scholarly analysis of Article II, Section 4, of the Constitution centers on “purpose, text and structure,” and provides serious arguments for both sides. The leading law review article, by Brian Kalt, considers the competing arguments and concludes that as long as the person is in office at the time of impeachment, meaning when the House of Representatives votes to impeach, it is a constitutional exercise of the impeachment authority.
During the Senate trial, Rep. Jamie Raskin, a former conlaw prawf, argued that any interpretation of the impeachment clause that failed to cover acts for which a president was impeached while in office, but tried after he left, created a “January exception,” a gap period where a president could commit wrongs with impeachment impunity if he couldn’t be tried before leaving office.
McConnell’s answer to this was that it doesn’t preclude other prosecuting authorities from acting against a miscreant president, but this falls short in two respects. First, it’s an abdication of responsibility, since Congress only has the authority granted by the Constitution and can’t compel some other prosecutorial authority to do anything. It’s McConnell saying “not my job,” when it is because the Constitution provides for it to be his job.
Second, the scope of impeachable conduct does not align with criminal conduct, so not every impeachable act will have a criminal law analogue. Impeachment is, as people loosely say, a political trial rather than a legal trial, which makes most legalistic analyses fall short and lends massive confusion to public understanding of what it’s all about. What we saw in the Senate was not a trial, as lawyers conceive of a trial, but a debate without serious rules. If you wondered why the law has developed so many rules, often arcane and sometimes incomprehensible, this is why. Without rules, this is what you get.
Was McConnell right, or at least close enough to right to provide cover for his bizarre post-impeachment trial rant against Trump after having voted not to convict? Putting aside whatever political benefit he expects to gain from trashing Trump, who deserved a thorough trashing, without convicting, having turned Trump into a martyr who can now proudly assert that he’s beaten two impeachments, a claim no other former president can make, it makes no sense.
Raskin’s “January exception” argument was valid, even though under the circumstances of this impeachment part of that problems falls on House Speaker Nancy Pelosi’s shoulders, having failed to send the Article of Impeachment to the Senate immediately. Pelosi may feel that McConnell burned her by asking her not to transmit the Article until January 25th, after the inauguration of Joe Biden, but if so, she let herself get burned. She could just as well have said, “Sorry, Mitch, but it’s on the way and you do whatever you have to do once it gets there. That’s your problem, not mine.” She didn’t. That’s on her.
But gaming the gap is something McConnell already knows a lot about. He did it with the Supreme Court nomination of Merrick Garland, where the good faith duty of the Senate to consider the nomination was ignored not because of any right to do so, or any rational argument against it, but because there was no enforcement mechanism to compel the Republican Senate to consider the Democratic president’s nominee. He got away with it because he was able to get away with it because there was no means to force the Senate’s hand.
Constitutional impeachment provides two remedies, removal and disqualification. They are stated in the Constitution with a conjunction, “and,” between them, but they have always been employed as separate remedies. Alcee Hastings is in the House after being impeached as a federal judge because he was removed, but not disqualified. Is the remedy of removal a precursor to the remedy of disqualification? There are arguments both ways, but they rely on the assumption that the framers anticipated every conceivable scenario that an official could create in the future.
One of the truisms of law is that it can never be up to the task of addressing every wrong mankind can conceive. This insurrection, directed at preventing Congress from performing its constitutional duty of counting the Electoral College votes and certifying the election of a new president, might be an act so venal, pointless and shameful that its timing would test the outer limits of the impeachment clause. Precedence was against McConnell’s position, as Judge Robert Archbald has been impeached while in office, but tried and convicted afterward. But precedents are for lawyers, and this is political.
McConnell’s position seems not merely wrong as a matter of constitutional construction, but pragmatics. As long as impeachment occurs while in office, the timing of trial is a matter of gaming the gap, and could be defeated by merely delaying the trial if that’s what the Senate chooses to do. Indeed, with some gamesmanship, an impeachment on Day 1 of a presidency could be delayed by an hour of trial here and there for four years, even eight, if they tried hard enough and were sufficiently shameless as to have no more fealty to the good faith exercise of their constitutional duty than they did with Garland.
So McConnell was wrong? Not exactly. As impeachment is political, there is no wrong rationale, but rather just a political calculus that the public will either believe or not. McConnell’s rationale was unsound, irrational and legally bullshit, but then, people with motivated reasoning will believe what they want to believe, just as did the people who believed that storming the Capitol because the a vulgar, amoral, lying, ignorant, loser president told them to, was the patriotic thing to do.