The Senate on Tuesday voted on a motion by Sen. Rand Paul (R-Ky.) to declare the impeachment trial unconstitutional on the specious grounds that Donald Trump has left office. (Note that McConnell refused to convene the trial before Jan. 20, thereby abetting his “escape” under Paul’s theory.) Only five Senate Republicans — Mitt Romney (Utah), Lisa Murkowski (Alaska), Ben Sasse (Neb.), Patrick J. Toomey (R-Pa.) and Susan Collins (Maine) — voted with Democrats to keep the trial on track. Not even Sen. Rob Portman (R-Ohio), who announced on Monday he would not run for reelection in 2022, had the spine to support the impeachment trial of an ex-president who incited an insurrection.
As Majority Leader Charles E. Schumer (D-N.Y.) said on the Senate floor, “It makes no sense whatsoever that a president, or any official, could commit a heinous crime against our country and then defeat Congress’ impeachment powers—and avoid a vote on disqualification—by simply resigning or by waiting to commit that offense until their last few weeks in office.”
Brian C. Kalt and Frank Bowman wrote for The Post that the precedent for impeachment after leaving office goes back to the 18th century:
The first impeachment trial under the new Constitution, in 1798, was of an ex-official: Sen. William Blount had conspired to give the British control over then-Spanish Florida and parts of French Louisiana. As soon as the plot was exposed, the House impeached him. The Senate expelled him soon after. At his impeachment trial, Blount’s lawyers argued Blount could not be tried because he was no longer a senator. That argument failed. Blount was ultimately acquitted by a vote of 14-11, but on the basis that senators are not “officers” subject to impeachment in the first place.An even stronger precedent is the 1876 case of ex-secretary of war William Belknap. After his corrupt scheme to sell a post as Indian agent was revealed to the House, Belknap quickly resigned before he could be impeached. But the House impeached the “late Secretary of War” anyway.
In the 20th century, the Senate twice declined to pursue an impeachment trial for a federal judge after he resigned but expressly reserved the power to impeach after resignation.
McConnell himself has reportedly said in private that this was an impeachable offense, but he voted with Paul to prevent conviction for Trump’s actions. That’s the sort of hypocrisy and intellectual contortion for which McConnell is infamous. It also puts him back in the MAGA apologist camp and makes it far less likely that the Senate holds Trump responsible for his grievous betrayal of office and for his efforts to subvert democracy.
Any possibility that McConnell might want to separate the party from the clutches of the former president seems to have evaporated. He and the rest of the Republican Senate can twist and turn all they like, but the inescapable conclusion is the same: While only a handful of Republican senators attempted to aid and abet the effort to overthrow our democracy (e.g., Sens. Ted Cruz of Texas and Josh Hawley of Missouri), all but five would condone Trump’s actions, allowing him to escape accountability for his betrayal of democracy.
Could some or all of them nevertheless vote to convict? Well, consistency is not the Republicans’ strong suit, as we learned from their flip-flopping on the confirmation of Supreme Court justices in an election year (no for Democratic presidents, yes for Republicans). Still, a change of heart among Republicans is unlikely. They will then be right back where they started — political hostages to an unhinged, anti-democratic character. Sen. Tom Cotton (R-Ark.) sacrificed whatever advantage he had obtained over potential 2024 rivals in declining to overthrow the election. Now, they are all in the same sinking boat once again, tied to a disgraced ex-president and accurately labeled as his accomplices in subverting democracy.
McConnell has marched his troops right back into the MAGA corner. Do they have any means of escape? Perhaps only one: Conviction is based on two-thirds of the senators present. In protest for the “unconstitutional” trial, a pack of MAGA Republicans could decline to show up, leaving their colleagues to do the heavy lifting in disqualifying Trump from future office. That would be cowardly, weaselly and irresponsible, you say? That is precisely why you should not rule it out.