Mitch McConnell’s speech after the vote to acquit Donald Trump was astounding. It was so damning and unequivocal in endorsing the case that Trump had indeed abused his office by inciting an insurrection that many of us stared at the television in disbelief. How could a Senator vote to acquit if he was so prepared and persuaded to make an argument as compelling the House manager’s own closing speeches?
The fact of McConnell’s speech will help render the historical meaning of this impeachment different from all prior presidential impeachments. Trump may have been acquitted. But he lost. He lost big. It is likely that history will remember Trump as guilty, even though acquitted. And it may elevate the significance of the first impeachment which in the short run seemed to benefit Trump politically more than it hurt him. For example, Senator Susan Collins of Maine voted, in essence this time, that she was wrong the first time in voting to acquit. The first time she said she was sure President Trump had learned his lesson, that he was chastened by the impeachment process. Now she knows better and has admitted this in the most solemn way possible — with her vote to convict.
Why did McConnell vote to acquit? He claimed that he was persuaded that the Senate does not have the constitutional authority to conduct a trial of a former president, vice president, or civil officers. This was a disputed question, although the vast majority of constitutional scholars think the Constitution does authorize the trials of officials no longer in office for impeachable conduct during their terms of office. But it was no longer a disputable question when McConnell voted. This issue was debated at the outset of this trial by the House Managers and the President’s attorneys and the Senate decided the question according to its own Impeachment rules. The question was settled — as a presumptive precedent going forward — and settled without any possible appeal for this particular trial. McConnell fashions himself as the consummate constitutionalist — standing up for the Senate itself. Far from it. Through these very words of feigned constitutionalism he subverted the deliberate decision of the very institution he had recently led. McConnell argued that if the Senate convicted a former president, it would license the Congress to impeach any citizen because there would be no limiting principle once one prosecutes officials who are now private citizens. Any private citizen could be the target of a congressional impeachment inquiry. This is utter and unmitigated nonsense. I was dumbfounded last week when John Yoo made a very similar claim in a conversation/debate Ben Kleinerman and I had with him at Notre Dame via Zoom. I am even more astonished that McConnell would say something so stupid as the coda to his history-making speech. None of the TV commentators addressed this — most assumed that the procedural issue provided some sort of plausible fig leaf for McConnell’s political interests. There is no fig leaf. There is nothing plausible. The limiting principle is that impeachments are confined to only those citizens who committed impeachable offenses while in office. If one has not served in federal office, there can’t be an impeachment. Simple as that.
He also argued that Trump could and should have been tried while he was still in office even though he intentionally prevented that from happening by refusing to call the Senate back from recess. This claim that the House fell down on the job so enraged Speaker Nancy Pelosi that she felt compelled to make an unplanned appearance at the press conference with the House Managers after the trial concluded to rebut McConnell’s claim.
Perhaps I should not have been so surprised. After all, when Senator McConnell was the Majority Leader during the first Trump impeachment he openly denigrated the special oath he needed to take to conduct the Senate Trial. For McConnell, all of the Senate’s rules, norms, procedures and precedents are resources and instruments for him to use at will to further his partisan goals and personal ambitions. He is an anti-constitutionalist whose arsenal includes purported fidelity to the institution and to the Constitution that he subverts.