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When a Trial is Not a Trial

The jury has reached a verdict. Trump is wounded, but not destroyed.

The trial was deeply flawed. Before all the evidence was in, before summations, and with no instructions as to the law, three members of the “jury,” Senators Ted Cruz, Lindsey Graham, and Mike Lee huddled privately with defense counsel to discuss tactics and strategy. This was a trial without rules and without moorings. It is amazing that the Democratic senators didn’t move to disqualify them from voting. In a court of law, this trio of GOP senators would be thrown off the jury. This bizarre proceeding was the stuff history is made on. As the conservative Wall Street Journal editorial board observed: “Trump might be acquitted but he won’t live down his disgraceful conduct.”

The proceeding was deeply political. Certain jurors couldn’t resist talking to the press. Lindsey Graham said that the avalanche of evidence burying Donald Trump for inciting an insurrection is “offensive and absurd.” His colleague Marco Rubio thought the trial  a “waste of time,” and a “demand for vengeance from the radical left.”

Seven GOP senators voted to convict, the most bipartisan vote  in the history of presidential impeachments. After using his power to delay the trial until after January 20, Mitch McConnell intimated he would have voted to convict, but argued there was no “jurisdiction” because Trump had left office. He said:  “There is no question that President Trump is practically and morally responsible for provoking the events of that day.” And the events of the day were horrific.

Had McConnell voted for conviction, and just nine other senators in his caucus joined him, there would have been enough votes for conviction.

It should come as no surprise that McConnell slithered out of his constitutional duty. Senators are political animals. No wonder Profiles in Courage is such a thin book.

McConnell’s position is dead wrong. The constitutional text sets the essential test. The prescribed remedy is removal “AND ” disqualification. Because Trump was out of office at the time of the trial, only the second remedy was available. There is ample precedent in to England antedating the Constitution for impeaching a former office holder. In America, the Blount case in 1797, the Belknap case in 1876, the statement by 200 constitutional law experts, and the ruling of the senate at the outset of the proceeding make clear there was ample jurisdiction in the senate to try the case. If certain senators sincerely believed there was no jurisdiction, they should not have voted at all. Moreover, a “January exemption” makes no sense. If  the founders of the country wanted to give a departing President a free pass for anything he did in the month of January, they would have said so.

Read entire article at Bill Moyers