Mitch McConnell WSJ Op-Ed: Acquittal vindicated the Constitution, not Trump.

Jan. 6 was a shameful day. A mob bloodied law enforcement and besieged the first branch of government. American citizens tried to use terrorism to stop a democratic proceeding they disliked.

There is no question former President Trump bears moral responsibility. His supporters stormed the Capitol because of the unhinged falsehoods he shouted into the world's largest megaphone. His behavior during and after the chaos was also unconscionable, from attacking Vice President Mike Pence during the riot to praising the criminals after it ended.

I was as outraged as any member of Congress. But senators take our own oaths. Our job wasn't to find some way, any way, to inflict a punishment. The Senate's first and foundational duty was to protect the Constitution.

Some brilliant scholars believe the Senate can try and convict former officers. Others don't. The text is unclear, and I don't begrudge my colleagues their own conclusions. But after intense study, I concluded that Article II, Section 4 limits impeachment and conviction to current officers.

Every­one agrees that "treason, bribery, or other high crimes and mis­de­meanors" ex­haust the valid grounds for con­vic­tion. It fol­lows that the list of per­sons in that sen­tence—"the pres­i­dent, vice pres­i­dent, and all civil of­fi­cers"—like­wise ex­hausts its valid sub­jects.

If that list of cur­rent of­fi­cers is not ex­haus­tive, there is no tex­tual limit. The House's "sole power of im­peach­ment" and the Sen­ate's "sole power to try all im­peach­ments" would con­stitute an un­lim­ited cir­cu­lar logic with no stop­ping point at for­mer of­fi­cers. Any private cit­i­zen could be dis­qual­i­fied. This is why one House man­ager had to ar­gue the Sen­ate pos­sesses "ab­so­lute, un­qual­i­fied" juris­dic­tion. But no­body re­ally ac­cepts that.

I side with the early con­sti­tutional scholar Jus­tice Joseph Story. He ob­served that while dis­qual­i­fi­ca­tion is op­tional, re­moval is manda­tory on con­vic­tion. The Con­sti­tu­tion pre­sup­poses that any­one con­victed by the Sen­ate must have an of­fice from which to be re­moved. This doesn't mean leav­ing of­fice pro­vides im­mu­nity from ac­count­abil­ity. For­mer of­fi­cials are "still li­able to be tried and pun­ished in the or­di­nary tri­bunals of jus­tice." Crim­i­nal law and civil lit­i­ga­tion en­sure there is no so-called Jan­uary ex­emp­tion.

There is a mod­ern re­flex to de­mand to­tal sat­is­fac­tion from every news cy­cle. But im­peachment is not some fi­nal moral tri­bunal. It is a spe­cific tool with a nar­row pur­pose: re­strain­ing gov­ern­ment of­fi­cers. The in­stant Don­ald Trump ceased be­ing the pres­i­dent, he ex­ited the Sen­ate's ju­ris­dic­tion.

I re­spect sen­a­tors who reached the op­po­site an­swer. What de­serve no re­spect are claims that con­sti­tu­tional con­cerns are triv­i­al­i­ties that coura­geous sen­a­tors would have ig­nored.

One House man­ager who lauded the Con­sti­tu­tion when the trial be­gan now de­rides it as "a tech­ni­cal­ity." An­other called this piv­otal ques­tion "a loop-hole." Talk­ing heads fumed that sen­a­tors had let le­gal niceties con­strain us. I even heard that only sen­a­tors who voted for con­vic­tion had any right to ab­hor the vi­o­lence. That's an­ti­thet­i­cal to any no­tion of Amer­i­can jus­tice. Lib­er­als said they con­demned the for­mer pres­i­dent's rules-be-damned reck­less­ness. But many ap­par-ently can­not re­sist that same temp­ta­tion.

Con­sider the claim that I could have steered around the ju­ris­dic­tional is­sue by re­call­ing the Sen­ate be­tween Jan. 14 and Jan. 20, while Mr. Trump was still in of­fice.

The salient date is not the tri­al's start but the end, when the penalty of re­moval from of­fice must be pos­si­ble. No re­motely fair or reg­u­lar Sen­ate process could have started and fin­ished in less than one week. Even the brisk im­peach­ment process we just con­cluded took 19 days. The pre­trial brief­ing pe­riod alone—es­pe­cially vi­tal af­ter such a rushed and min­i­mal House process—con­sumed more than a week.

Pres­i­dent Biden, who knows the Sen­ate, stated as early as Jan. 8 that his swear­ing-in was the "quick­est" pos­si­ble path to chang­ing the oc­cu­pant of the White House. Es­pe­cially since the House didn't vote un­til Jan. 13, any le­git­i­mate Sen­ate process was cer­tain to end af­ter In­au­gura­tion Day.

Here's what the sched­uling crit­ics are re­ally say­ing: Sen­ate Re­pub­li­cans should have fol­lowed a rushed House process with a light-speed Sen­ate sham. They think we should have shred­ded due process and ig­nited a con­sti­tu­tional cri­sis in a footrace to out­run our loss of ju­ris­dic­tion.

This se­lec­tive dis­re­gard for rules and norms is a civic dis­ease that is spread­ing through the po­lit­i­cal left. Sen­ate De­moc­rats rel­ished the leg­isla-tive fil­i­buster and used it fre­quently when they were the mi­nor­ity party. Now only two of them pledge to re­spect it. Ma­jor­ity Leader Chuck Schumer has threat­ened Supreme Court jus­tices by name, and other De­moc­rats sub­mit­ted a brief de­mand­ing the court rule their way or be "re­struc­tured." As re­cently as Sep­tember, fewer than half of De­moc­rats pro-fessed con­fi­dence that elec­tions are free and fair. In No­vember, that num­ber shot up to more than 90%—be­cause they liked the re­sult.

The na­tion needs real con­sti­tu­tional cham­pi­ons, not fair-weather in­sti­tu­tion­al­ists. The Sen­ate's duty last week was clear. It wasn't to guar­an­tee a spe­cific pun­ish­ment at any cost. Our job was to de­fend the Con­sti­tu­tion and re­spect its lim­its. That is what our acquit­tal de­liv­ered.

Mr. Mc­Connell, a Ken­tucky Re­pub­li­can, is U.S. Sen­ate mi­nor­ity leader. WSJ op-ed, February 15, 2021


February 16, 2021

Voices4America Post Script. I gasped and I suspect you did too, on Saturday, when Mitch McConnell, who had just voted for Trump’s acquittal, suggested Trump could face criminal prosecution for his actions outside the Senate. Yesterday, he wrote this op-ed in WSJ, defending his position. I thought you would like to read this. Feel free to share

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