The vote by 45 Senate Republicans to dodge the question of whether spending 8 weeks whipping your followers into a frenzy by telling outrageous lies attacking the foundation of our democracy and then turning them loose on the U.S. Capitol to shut down the electoral vote count amounts to an impeachable offense was not their finest moment. Whether it was their worst depends on how they vote when the trial concludes.
Few of the present crop of Senate Republicans provide courage, but this was a particularly embarrassing display. Instead of address the weight of the historical, prudential, and legal arguments on impeaching a former officeholder, they chose to tell themselves constitutional just-so stories that got these to a predetermined-and immensely convenient-conclusion. In fact, impeaching the now ex-president is almost certainly constitutional and it's shameful that only five Republican senators had the courage to say so.
First, there's the weight of historical precedent. In 1876 the Senate faced a similar question-it was actually a tougher case compared to present impeachment-and concluded that Congress had the authority to impeach officials after they had left office.
Second, there is the prudential argument. Does anyone think it in all probability that the Founders intended to specifically exempt lame duck presidents from impeachment? Will it make any sense at all to allow Congress to bar sitting presidents from future office according to horrific acts in the first month of their terms but not for acts committed within the last month?
I don't think there is any question that that is not what the Founders intended. Nor is there any question that it's an extraordinarily bad idea. Should you put that interpretation from the impeachment power together with the idea of a presidential self-pardon-and there's a much better constitutional case for that than there's for not impeaching ex-presidents-you turn the Constitution right into a demagogue's charter. Lose the election? No problem! Call out those mobs and provide it your best shot. It's all good!
Finally, there is the legal argument. Republicans claim, as Rand Paul did around the Senate floor and in an opinion article on Tuesday, that it isn't constitutional to impeach someone once they're out of office. Though the weight of precedent and logic say otherwise, fine, let's assume that's correct. Happily, that isn't what happened. Donald Trump was still very much in office when he was impeached-which is a formal vote by the House to adopt articles of impeachment-so there is no question that proceeding with the impeachment trial itself is perfectly constitutional.
Analytically, there are two separate concepts at play here, jurisdiction and mootness. Within the 1876 case, Secretary of War William Belknap hurriedly resigned before his impeachment might be voted on in the House. Once the Senate received the articles of impeachment, it took its own vote on whether it had jurisdiction to proceed using the trial and concluded that it did. Unfortunately for Belknap-and current Senate Republicans-\”You can't fire me. I quit!\” is not actually a legal doctrine.
The current case isn't even that close. The House impeached the now ex-president a week before he left office. If you wish to analogize it to a court proceeding, there is no question that this case was brought before the statute of limitations expired. Once the court's-in this case, the Senate's-jurisdiction has attached, jurisdiction doesn't \”expire\” regardless of how long it takes to complete the trial.
Mootness is really a different concept. When a court with proper jurisdiction can no longer offer a meaningful remedy, a case can be dismissed as moot. When Republicans say that the Senate doesn't have the constitutional authority to hold an impeachment trial once a president has left office, what they are actually arguing would be that the case is moot because an ex-president can not be removed from office on conviction.
But again, that's simply wrong. The Constitution provides two possible penalties for conviction in an impeachment trial: removal from office and being barred from future office. If the ex-president can be barred from holding future public office on conviction, there is still a reason to hold the trial and also the proceeding is, by definition, not moot.
In a sense, this is now water underneath the bridge since the Senate has voted 55-45 it does have jurisdiction to try this impeachment. When the senators honor their oath, they'll now move on and consider whether Trump’s efforts to overturn the results of an American election, efforts that led to mob violence, are acceptable presidential behavior or whether or not they amount to an impeachable offense.
Unfortunately, a lot of Republican senators aren't going to do that. They'll vote not to convict and claim that they are doing it only because they don't believe the trial is constitutional. That isn't, of course, relevant to the question they are duty-bound to consider and it's as gross a violation of their oath as refusing to convict because Chuck Schumer won't promise to protect the filibuster.
It's also a serious violation of the separation of powers. The Senate, like a body, has ruled that it has jurisdiction. If the Senate is wrong, that's up to the judicial branch to decide, not individual senators. And the way that happens is for a convicted ex-president to challenge the Senate's verdict in the court. That's the way our system is designed to work.
There is no fig leaf for Republicans here. They can't hide behind pretend concerns about constitutional rectitude. The trial progresses now and if they vote to acquit, it's either simply because they find Trump's behavior acceptable or because they are terrified of his supporters and will do anything to please them. Pretending otherwise isn't going to fool anyone-not the American people, not Mr . trump, and, most certainly, not history.