It was little surprise that Senators willing to violate their oath to uphold the Constitution and laws of the United States, by ignoring a Senatorial vote, would also be willing to ignore Trump’s dereliction of his duty to uphold the Constitution
By Anil Madan
In the courts of Scotland three verdicts are available in a criminal case. The verdict of conviction or guilty is one, and the verdict of innocent or not guilty, is another. A third verdict of NOT PROVEN or No Pruiven, is also available. The last verdict might be appropriate for impeachment trials which are neither wholly criminal, nor wholly civil, but mostly political.
Impeachment Trial. Photo – New York Times
On the final day of the second impeachment trial of Donald Trump, as senior Republican Senator’s speech to the Senate Chamber included these remarks:
“January 6th was a disgrace. American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business… Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the Speaker of the House. They built a gallows and chanted about murdering the Vice President.
“They did this because they had been fed wild falsehoods by the most powerful man on Earth – because he was angry he’d lost an election.
“Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty.There is no question that President Trump is practically and morally responsible for provoking the events of that day.
“The people who stormed this building believed they were acting on the wishes and instructions of their president.
“And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth.”
The speaker was Senator Mitch McConnell, the senior Republican who had been Majority Leader of the United States Senate until January 20th – the day of President Biden’s inauguration.
Unfortunately, and sadly, the words fell from his mouth after he voted “Not Guilty,” empty of force, and representing a despicable display of cowardice and cognitive dissonance.
McConnell, clearly troubled by his vote, discordant from the truth as he himself had articulated it shortly after the Senate’s vote, had to put on the record a concocted and twisted justification for his indefensible vote. Forty-two other Republicans joined McConnell in refusing to convict, thereby losing the opportunity to bar Trump forever from holding federal office again.
An impeachment trial is not a criminal case although it sometimes can and does have overtones of criminal conduct. It is obvious that a verdict of No Pruiven is what the Senate actually rendered. Legal proof and actual proof can diverge. Here they did.
McConnell’s principal assertion was that because Trump was no longer President, the Senate had no jurisdiction to try him. Aside from unduly crediting a legally dubious claim that has been rejected by leading constitutional scholars, McConnell ignored the Senate’s vote affirming jurisdiction. It is an axiom in the law that a court has jurisdiction to determine whether it has jurisdiction. There was, therefore, nothing amiss in the Senate, sitting as a court of impeachment having addressed this question. McConnell chose to disregard a binding vote of the Senate as did several other Republican Senators who proffered echoes of McConnell’s deficient rationale as justification for their own votes.
It was little surprise then, that Senators willing to violate their oath to uphold the Constitution and laws of the United States, by ignoring a Senatorial vote, would also be willing to ignore Trump’s dereliction of his duty to uphold the Constitution and laws by seeking the assistance of a mob in a continuing protest of the election result based on falsehoods and myths
Without question, the evidence was clear that the former president’s disregard of his oath of office to uphold the Constitution and laws of the United States and, indeed, his concerted efforts to subvert lawful processes demanded impeachment.
Unholy outcome of acquittal
But the blame for this unholy outcome of acquittal is not solely on the shoulders of the Republicans. Unfortunately, the Democrats gave the Republicans an opening because of the mistaken way in which the single article of impeachment was formulated.
After January 6, the Democrat-controlled House of Representatives rushed to impeach Trump. The members of the House, like the Senators, were witnesses to those events. What happened on January 6, 2021 is largely beyond cavil. There is no question that for weeks Trump urged his supporters to come to Washington on January 6, the day that the Joint Session of Congress was slated to count the certified results of the Electoral College, and that he did so for the express purpose of getting the crowd to march down to the Capitol and demand that Vice President Pence, the House and Senate, disregard the certified results of the election. We know this from Trump’s own words on January 6: “All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people,” and “We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated.”
It was not unreasonable for the members of the House to connect the insurrection to Trump’s speech at the ellipse. Indeed, they were correct in doing so as McConnell’s speech confirms.
The problem is that because two events are connected, one is not necessarily the legal cause of the other. The members of the House became too enamored with the idea of charging Trump with inciting insurrection which is a criminal charge. Given that it is well established that impeachment of a President for “High Crimes and Misdemeanors” does not necessarily require the commission of a crime, why was the House so fixated on using the language of “incitement” which is a term addressed by many legal precedents in criminal law? The answer is found in section 3 of the 14th Amendment to the Constitution: “No Person shall… hold any office… under the United States… who… shall have engaged in insurrection or rebellion against the same.” Clearly, the Democrats in the House wanted to disqualify Trump from ever being president again.
When it came to the actual trial, the House Managers presented a compelling case for impeachment. But the case they presented was not necessarily the case that is charged in the single Article of Impeachment, that of Incitement of Insurrection.
No evidence of material fraud
Let me reiterate that to be clear: I thought the House Managers put on a case showing that Trump should be impeached for disregard of the results of a free and fair election after he and his supporters had lost every court case seeking to overturn the election because there simply is no evidence of material fraud sufficient to change the result of the election.
On top of that, Trump sought to subvert the constitutional process of certification of the electoral votes by asking Vice President Pence to disregard the Constitution and federal statutes and send the matter back to the legislatures of swing states. He encouraged his supporters to come to Washington for the purposes of pressuring Pence and the Congress to that end. When they showed up, he enlisted their support in exerting such pressure. And once the assault on the Capitol was under way, Trump ratified and endorsed what the mob had done.
Note that I have said nothing about incitement, but enough about Trump’s violation of his oath and dereliction of his duty.
What the House Managers proved is that Trump repeatedly tried to overturn the result of the election by any means including his attempts to thwart and subvert the execution of statutory and constitutional steps to that end. Trump was, of course, free to seek legal recourse. But having lost case after case in the courts, indeed all cases, his assault on the system was in clear violation of the law and the Constitution.
Let us look at the relevant substance of the article of impeachment that lays out a charge of incitement to insurrection (the complete text of the article is pasted below).
Article I: Incitement of Insurrection
In his conduct while President of the United States—and in violation of his constitutional [duties]—Donald John Trump engaged in high Crimes and Misdemeanors by inciting violence against the Government of the United States….
Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC…. [I]ncited by President Trump, members of the crowd he had addressed… unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts. President Trump’s conduct on January 6, 2021, followed his prior efforts to subvert and obstruct the certification of the results of the 2020 Presidential election. In all this, President Trump gravely endangered the security of the United States and its institutions of Government. He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.
The problem with this article of impeachment is that it allowed Trump and his lawyers to point to portions of his January 6 speech at the Ellipse as not calling for violence and being merely an exercise of his rights of free speech. For example, the following portions of his speech might be treated as the mere expression of his opinions:
“Because if Mike Pence does the right thing, we win the election. All he has to do, all this is, this is from the number one, or certainly one of the top, Constitutional lawyers in our country. He has the absolute right to do it. We’re supposed to protect our country, support our country, support our Constitution, and protect our constitution.
“States want to revote. The states got defrauded. They were given false information. They voted on it. Now they want to recertify. They want it back. All Vice President Pence has to do is send it back to the states to recertify and we become president and you are the happiest people.”
Even his calls to his supporters to “fight” might in context be considered as referring to a rhetorical political fight:
“And you have to get your people to fight. And if they don’t fight, we have to primary the hell out of the ones that don’t fight. You primary them. We’re going to. We’re going to let you know who they are. I can already tell you, frankly.”
The “fight” he was urging was a fight in the primary elections in the future.
And after he declared that it was time to march to the Capitol, he added: “I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
First amendment freedom
It is not a stretch to say that this was urging the crowd to exercise another first amendment freedom, that of the right of the people peaceably to assemble and petition the government for redress of grievances.
As I listened to the case put on by the House Managers and the response by Trump’s lawyers, it became clear that there were too many hooks on which Republican Senators could hang a vote to acquit. Even before the evidence was all in, Senator McConnell announced that he would vote to acquit: “While a close call, I am persuaded that impeachments are a tool primarily of removal and we therefore lack jurisdiction,” the leader wrote. “The Constitution makes perfectly clear that presidential criminal misconduct while in office can be prosecuted after the president has left office, which in my view alleviates the otherwise troubling ‘January exception’ argument raised by the House.” He provided succor to the other Republicans in advance of the crucial vote.
McConnell is wrong. No court can impose the sanction of barring anyone from holding office in the future. And the fact that the Constitution specifically states that a person impeached remains liable to criminal prosecution and other penalties, underscores that the constitutional penalty of disqualification from future office is not eliminated by resignation or end of term.
Supreme Court case law makes it clear that incitement to violence must be explicit or implicit and imminent. Whereas McConnell is entirely correct that Trump’s words did provoke the events of January 6 and that his conduct was foreseeably responsible for inducing his followers to believe that he wanted them to do what they did, it falls short of a legal case of incitement.
The tragedy is that a legal case of incitement was not necessary for impeachment. The House made a mistake. Trump’s lawyers and the 43 cowardly Republican senators chose Trump over their country.
* Published in print edition on 16 February 2021