“I have lost tons of sleep thinking he may get away with what he did,” the South Carolina senator Lindsey Graham said. “Impeachment is not about punishment. Impeachment is about cleansing the office. Impeachment is about restoring honor and integrity to the office.”
The “he” who vexed Senator Graham’s sleep was not Donald Trump. It was Bill Clinton. And Graham worked to make sure Clinton would not get away with lying under oath about his little affair, voting, in 1999, to convict the president and remove him from office.
On Saturday, Graham reached a different conclusion. In joining 42 of his Republican colleagues in voting to acquit Donald Trump of inciting a violent insurrection, Graham commented: “I think most Republicans found the presentation by the House managers offensive and absurd.”
Whatever else we might think about the Republicans’ vote of acquittal, it answers a question that millions of Americans have been pondering since Donald Trump took office four years ago. At what point would congressional Republicans say “enough”? Having first indulged and then endorsed Trump’s trampling of constitutional norms and abuse of the presidency, when would Republican lawmakers say, “No more”?
Now we have our answer. Never. If Trump’s act of inciting a mob to attack the Capitol in an attempt to subvert the certification of a fair and democratic election does not constitute impeachable conduct, then it’s hard to imagine what does. Still, history will record that the vast majority of Republican senators voted to acquit, a group that included eleven lawmakers who, two decades ago, agitated for Clinton’s removal.
True, seven Republicans voted to convict Trump, led by the stalwart and principled Mitt Romney, who, a scant eight years ago, was the party’s standard bearer. And among those voting to acquit, there appeared to be a handful who agonized over their vote, most notably Mitch McConnell, until recently the Senate majority leader.
In a remarkable speech delivered on the heels of the trial’s conclusion, McConnell sounded like a late addition to Jamie Raskin’s formidable team of House managers. Indignantly demolishing the absurd claim by Trump’s lawyers that the president was simply the victim of a “constitutional cancel culture,” McConnell accused Trump of a “disgraceful dereliction of duty” in provoking the violence of 6 January.
All the same, McConnell voted to acquit on jurisdictional grounds, insisting that the constitution’s impeachment clause does not authorize the conviction of a former president, now a “private person”. The argument is not silly: the text is ambiguous and past practice does not offer a particularly clear guide. Such precedents as there are – most notably the impeachment trial of William Belknap, Ulysses S Grant’s former secretary of war, after Belknap had resigned his post – never resulted in a conviction.
But McConnell’s argument does bring to mind US supreme court Justice Robert Jackson’s observation that “the US constitution is not a suicide pact”. For that is how McConnell would have us read the impeachment clause. According to McConnell, the constitution empowers the US Senate to remove a sitting president and to disqualify them from holding future office, but it does not permit the disqualification of a disgraced former president from seeking a return to power. By McConnell’s peculiar logic, only if Trump should run again in 2024 and win, could he be convicted for his actions of 6 January 2021.
McConnell would leave the constitution powerless to check a sitting president, who, like Trump, is prepared to attack the peaceful transfer of power. Either the would-be authoritarian is successful, in which case they need not worry about impeachment, having effectively smashed democracy, or they will fail in their putsch and be spared any form of constitutional reckoning.
McConnell’s insistence the Senate lacks the power to convict a “private person” also misleadingly characterizes Trump’s present status. Were Trump now merely a private person, Republican senators would not be bending over backwards to appease him. It is precisely because Trump continues to control the base of the party – with millions viewing him as the rightful president in exile – that Republican lawmakers remain unwilling to cross him.
Finally, while McConnell was surely right to hold Trump responsible for the violence of 6 January, his insistence that Trump bore “sole” responsibility rings almost facetious. Aiding and abetting the president were the likes of Missouri senator Josh Hawley, pumping his fist in solidarity with the insurrectionists; Texas senator Ted Cruz, smoothly insisting that the Senate shouldn’t certify Biden’s victory so long as millions of Americans bought into the myth of stolen election that the senator had helped spread; and even McConnell himself, who spent years feeding the beast. Republican senators didn’t just acquit Trump yesterday; they also voted to let themselves – Trump’s co-conspirators – off the hook.
Lawrence Douglas is the James J Grosfeld Professor of Law, Jurisprudence and Social Thought, at Amherst College, Massachusetts. His book on the 2020 election, Will He Go? was published by Hachette in 2020. He is also a contributing opinion writer for the Guardian US