It is irritating to hear people say that a constitutional “technicality” allowed some senators to vote “not guilty.” Although most senators found the former president guilty of inciting an insurrection, the Senate vote came up short of the two thirds needed to convict.
The Republican leader, Senator Mitch McConnell, spoke on the Senate floor shortly after the vote. He agreed that the former president was “morally responsible for provoking the events” of January 6, when a blood-thirsty mob of hundreds broke into the Capitol bent on hanging Vice President Pence and shooting House Speaker Nancy Pelosi.
McConnell said that Trump had manufactured “an atmosphere of looming catastrophe” and had orchestrated a “growing crescendo of false statements, conspiracy theories, and reckless hyperbole” that drove the mob to believe they were acting on his instructions. The erstwhile president had spun a web of lies about a stolen election, provoked the mob into a frenzy of anger, and directed them to wink-wink “walk” to the Capitol. He was responsible for the riot, the damage, the desecration, the bodily injuries, and the death that resulted.
Alas, McConnell’s hands were tied. The former president was beyond the Senate’s power to convict because he was no longer in office. McConnell believed that Trump was “morally responsible” but not “guilty.”
The now former president was “constitutionally not eligible for conviction,” and McConnell would not consider whether his “unconscionable” behavior violated the presidential oath of office to preserve, protect and defend the Constitution. Conviction, he said, was “insensible” because Article II, Section 4, “exhausts the set of persons who can legitimately be impeached, tried, or convicted.”
No doubt the other 42 senators who voted “not guilty” also rationalized their decisions based on the McConnell Doctrine of constitutional ineligibility.
This was not a technicality. To call it such would be to imply that it was a real thing, a correct reading of the Constitution. It is not. McConnell is clever and eloquent, but he is also wrong and deceitful. The men who wrote the Constitution did not include any language that could honestly be construed to incorporate the McConnell Doctrine.
Under the Constitution, the House of Representatives “shall have the sole Power of Impeachment” (Article I, Section 2). That power is not limited by an “eligibility” test.
Under Article I, Section 3, the Senate “shall have the sole Power to try all Impeachments.” There is no language to suggest that a president is “eligible” for trial and conviction only if still in office.
Where then does McConnell find his doctrine in the Constitution? He points to Article II, but he is off-base. Article II is about executive power, and Section 4 addresses removal from office. It circumscribes presidential power and stands for the fundamental principle that a president is not above the law.
The president “shall be removed from Office” if impeached (by the House) and convicted (by the Senate) of “Treason, Bribery, or other high Crimes and Misdemeanors.” Because the powers of impeachment and trial rest in the legislative branch under Article I, the legislative branch decides what conduct would count as a high crime.
Removal from office is mandatory under Section 4 when the president, the vice president or any “civil officer” of the United States is convicted of an impeachable offense. McConnell says that because Section 4 contains an “exhaustive” list of the grounds for impeachment it “therefore follows” that the list of persons in Section 4 is also “exhaustive.”
But it does not “follow” and nothing in Section 4 suggests the McConnell Doctrine that only a sitting president, vice president or civil officer is eligible for trial and conviction. The list of persons in Article II, Section 4 is an “exhaustive” list of persons who must be removed from office upon conviction of an impeachable offense, but it is not “exhaustive” of the persons who may be convicted.
It is obviously true that if the presidential term has expired, the former president has already left office and cannot “be removed.” It is nonsense to suggest that the Framers should have listed former presidents in Section 4 for the sake of exhaustiveness.
To address the situation that might occur if the president commits an impeachable offense while in office but has left office by the time of trial, the Constitution gives the Senate a further power under Article I, Section 4: “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Although it is expressed as a limitation, this Constitutional provision gives the Senate the power to disqualify a guilty former president from holding office in the future.
The McConnell Doctrine rests solely on an imaginary constitutional provision. The Constitution does not say that a former president is “ineligible” for conviction of a high crime. There can be no doubt that it is a “high crime” to provoke a mob to attack Congress and interfere with the Congressional counting of electoral votes. The Constitution does not allow the president to commit the crime but pay no price.
The Framers would not have left the People with no remedy for a president who commits such a high crime and such a violation of the Constitution. The idea that the McConnell Doctrine is what the Framers intended would be immensely laughable if the consequences were not so serious and so dangerous. It is, to use McConnell’s words, “an absurd end result to which no one subscribes.”
Some other stuff for later,
- 78In the Senate last week, Mitch McConnell stood at the rostrum. He said in somber voice: “If this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral.” Further, “self-government, my colleagues, requires a shared commitment to the truth and a shared respect…
- 72On January 13, the House impeached Donald Trump again (he had been impeached before in 2019), this time finding that he “engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States.” He “repeatedly issued false statements asserting that the Presidential election results were the…
- 72A week before the presidential debate, I said to a friend: “I am not sure you can ‘win’ a debate with a liar.” The atrocity that occurred on September 29 in Cleveland proved my point. Not only did the president predictably and automatically lie, distort and demean, he refused to…