But McConnell said he couldn’t vote to convict because the trial had come too late, after Trump was out office — even though it was McConnell himself who had kept the Senate out for the remainder of Trump’s term.
McConnell suggested that a criminal prosecution of Trump could be in the cards, a stunning confession of how he regards the seriousness of the allegations and the extent of the evidence. The only saving grace is that McConnell will be forever remembered as the one who intentionally let someone worthy of criminal investigation get away.
“It is the height of hypocrisy,” Sen. Richard Blumenthal (D-Conn.) told me. McConnell in effect “called time, and he’s the one who ran out the clock.”
House Speaker Nancy Pelosi (D-Calif.) was irate during the post-verdict news conference. “It is so pathetic that Senator McConnell kept the Senate shut down so that the Senate could not receive the Article of Impeachment and has used that as his excuse for not voting to convict Donald Trump.”
The media figured out what was going on and called him out in unusually blunt terms. Mediaite recounted the exchange on CNN between Dana Bash and Abby Phillip:
Anchor Dana Bash began the segment talking about Speaker Nancy Pelosi’s (D-CA) infuriated tone at a press conference earlier Saturday, reacting to McConnell’s actions.Pelosi “was so incensed, so angry, understandably so,” said Bash, “given the fact that she really would have given the Impeachment Article to the Senate had she not heard pretty clearly, like we all heard, from Mitch McConnell when he was still in charge of the schedule of the Senate, that he wasn’t going to bring them back from recess.” …“But he did it because he wanted to be able to do both things, wanted to be able to say, ‘I don’t think we should, you know, vote to convict Trump,’ but also condemn it,” concluded Phillip. “You cannot have it both ways on this issue no matter how hard he tries.”
NBC News’s Benjy Sarlin observed, “By McConnell’s own account of Trump’s conduct, he decided to let the Senate adjourn rather than agree to consider removing a president who was at that very moment violently threatening the core function of government.”
The New York Times underscored how McConnell set up the trial on terms that would allow him to then vote to acquit. “Democrats were furious, pointing out that their vote to impeach came while Mr. Trump remained in office and that it was Mr. McConnell who refused to call the Senate back into session to start the trial before he left office.”
McConnell, one would think (but consistency is never a barrier for him), cannot object if the new administration’s Justice Department prosecuted the former president. McConnell no doubt resents Trump for costing him the Senate majority. He likely would be pleased if some prosecutor could do the job for him.
The next time someone criticizes the Biden administration for a lack of bipartisanship, remember this episode of McConnell’s monstrous hyperpartisanship. The White House will be dealing with a minority leader and a party so lacking in honor, and so willing to disregard the country’s interests, that no reasonable person could expect their genuine cooperation or compromise. McConnell has shown his true colors.
There is another way to test McConnell: Democrats could bring a bill or a resolution to affirm, according to the 14th Amendment, Section 3, that the former president is ineligible to hold office because he engaged in “insurrection” or had “given aid or comfort” to those who did. That Civil War provision prohibited Confederate officials and military officers from serving in the Union unless granted a reprieve by a two-thirds vote of the House and Senate.
Congress could enact legislation establishing procedures to enforce Section 3 with respect to Trump. Alternatively, congressional action could take the form of a concurrent resolution. That wouldn’t have the force of law, but it would cast serious doubt on Trump’s ability to hold office in the future and could be used as a basis for challenging his candidacy if he seeks office.
Whatever the mechanism, it would affirm that in Congress’s view, Section 3 applies to prevent him from holding office. Congress could go even further and authorize the attorney general to bring an action to enforce Section 3 against Trump before the U.S. Court of Appeals for the District of Columbia Circuit (or a three-judge federal district court panel) and allow for immediate, expedited appeal to the U.S. Supreme Court.
Strictly speaking, a vote on a Section 3 resolution would not be required if down the road Trump chooses to run for office. If he runs, his opponents could seek to disqualify him. Nevertheless, putting Congress on the record would give weight to such a claim in the future and, as noted, could give the Justice Department a cause of action to enforce Section 3.
Would McConnell sign on to that sort of measure? One imagines he would come up with an excuse to avoid it. Democrats will have to decide the legal and political value of such a move. Whatever they decide, however, it won’t diminish the outrageousness of McConnell’s dishonorable maneuvering to acquit Trump and show contempt for the Constitution and for his oath of office.