Trump is acquitted but the Senate convicts itself


Donald Trump.

Illustrated | Getty Images, iStock

February 13, 2021

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Donald Trump was acquitted in an impeachment trial on Saturday for the second time in as many years. Once again there was very little suspense. With a handful of exceptions, Senate Republicans had made it clear weeks ago that they had no intention of even entertaining the evidence in proceedings they dismissed as unconstitutional. The vote failed 57-43, with seven GOP defections, from Richard Burr, Bill Cassidy, Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse, and Pat Toomey respectively. From beginning to end these solemn judicial proceedings took five days, far less time than the average felony trial.

For a brief moment it did appear as if this might not be the case. In a bizarre series of events on Saturday morning, senators briefly voted 55-45 at the bidding of House impeachment managers to call witnesses before withdrawing their own request. Such a course of action would have prolonged the trial by several weeks. Democrats seeking to justify their about-face here will no doubt insist that witness testimony would not have changed the mind of a single Republican. This is probably true. But it elides the more important question of why they bothered going ahead with the trial in the first place in full knowledge that conviction was not just unlikely but virtually impossible. I cannot help but think that Lindsey Graham, who came out in favor of calling witnesses a few hours before voting to acquit, was trying to make a rhetorical point about the cynicism of the whole enterprise.

There was certainly plenty of it to go around. In his post-acquittal remarks, Mitch McConnell essentially conceded the argument of the House impeachment managers that Trump was guilty of incitement, albeit in a sense that transcends the narrow criminal definition of the term: “There is no question that President Trump is practically and morally responsible for provoking the events of the day. The people who stormed this building believed they were acting on the wishes and instructions of their president.” McConnell stated plainly that on Jan. 6, Trump intended either to overturn the results of the election or else to “torch our institutions.” Ultimately he opposed conviction on the grounds that the defendant had already left office and that the Senate was not authorized to serve as a “moral tribunal.” As a private citizen, he insisted, Trump was “constitutionally ineligible”; if he were not, the Senate would be an all-powerful Star Chamber, empowered to disqualify any American from holding office on any pretext.

Was this a bad argument? It was certainly a convenient one, allowing McConnell to make a principled case against Trump without incurring the wrath of the former president’s supporters. But it was also a practical one, a frank acknowledgement that McConnell and his GOP colleagues are exhausted. They want Trump to go away every bit as much (indeed, perhaps even more so) than Democrats and their allies in media. Conviction would almost certainly have triggered a legal battle over his disqualification from office, keeping him in the public eye indefinitely.

Talking about norms and precedents is a mug’s game, but I cannot see a future in which two successive impeachments and acquittals of a single president remain an outlier. What Democrats have shown us is that there is no real downside to these proceedings for an opposition party with a majority in the House. I expect that in the years to come impeachment will become a tedious ritual whenever the White House and the lower chamber are held by opposing parties. So far from being a victory for opponents of presidential malfeasance, the normalization of impeachment will undermine our only constitutional mechanism for checking the power of the executive.

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