The Washington PostDemocracy Dies in Darkness

Trump got off on a technicality

House managers argue former president Trump incited an insurrection in a dramatic and swift Senate impeachment trial. (Video: The Washington Post)

Over and over again during his attempt to overturn the 2020 election, President Donald Trump and his team complained about technicalities. When courts ruled against them on procedural grounds, they suggested (often wrongly) that the rulings meant the substance of their arguments remained intact — because the courts hadn’t actually dealt with them.

“There’s no way to say it other than they dodged,” White House press secretary Kayleigh McEnany said after the Supreme Court dismissed a case in December. “They dodged, they hid behind procedure, and they refused to use their authority to enforce the Constitution.”

On Saturday, Trump was acquitted at his second impeachment trial largely — if not completely — on a technicality: the argument that the trial itself was unconstitutional.

The vote, while an acquittal, represented a historic rebuke. Seven GOP senators voted to convict (previously, only one senator from a president’s party had ever voted to convict), making the final vote 57 to 43. That meant Trump was 10 votes from the 67 that would have resulted in his conviction.

That’s still a long way away. But if you look closely at what the 43 Republicans who voted to acquit said about it, it seems possible, but for the unconstitutionality claims, Trump might have come quite a bit closer to losing on the merits.

Professor Brian Kalt finds the number of GOP senators citing the idea that you can’t or shouldn’t try a former president is right around the number -- 34 -- that would have precluded his conviction on that question alone.

In addition, at least five Republican senators suggested that Trump was indeed culpable for the Capitol riots, while voting to acquit him on constitutional grounds:

  • Senate Minority Leader Mitch McConnell (R-Ky.) excoriated Trump’s conduct in a speech after the vote and even suggested that the former president might be held criminally liable.
  • The No. 2-ranking Senate Republican, Sen. John Thune (S.D.), said explicitly: “My vote to acquit should not be viewed as exoneration for his conduct on January 6, 2021, or in the days and weeks leading up to it. What former president Trump did to undermine faith in our election system and disrupt the peaceful transfer of power is inexcusable.”
  • Sen. Shelley Moore Capito (R-W.Va.) emphasized that her vote was “solely” on the constitutional question, while adding: “The actions and reactions of President Trump were disgraceful, and history will judge him harshly.”
  • Sen. Dan Sullivan (R-Alaska) said: “I condemn former president Trump’s poor judgment in calling a rally on that day, and his actions and inactions when it turned into a riot. His blatant disregard for his own Vice President, Mike Pence, who was fulfilling his constitutional duty at the Capitol, infuriates me.”
  • Sen. Rob Portman (R-Ohio) added: “I have said that what President Trump did that day was inexcusable because in his speech he encouraged the mob, and that he bears some responsibility for the tragic violence that occurred.”

Not all of these statements directly suggest a vote to convict but for the constitutional question. Republicans have often drawn a line between criticizing Trump for his actions — even quite strongly — and saying he technically incited the mob that stormed the Capitol on Jan. 6.

But relatively few Republicans have actually vouched for or defended Trump’s conduct. Some put out statements that didn’t address the substance of the case at all, focusing instead solely on process issues or constitutionality. (This despite many legal experts saying that, because the Senate had voted affirmatively that it had jurisdiction, they had a duty to decide the case on the merits). Others faulted Trump less harshly than the above.

Sen. James Lankford (R-Okla.) said in a brief statement: “I cannot support removing someone from office who is not in office. An impeachment trial after someone has left office is unconstitutional.” The statement then contained background on the legal underpinnings of his decision. It made no mention of Trump’s conduct.

Sen. Tom Cotton (R-Ark.) suggested additional evidence was needed and criticized Democrats for not pursuing it. He added: “It was ill-advised to have a large rally on the day that Congress was meeting to certify electors after so much contentious litigation and controversy about the election results.”

Sen. Charles E. Grassley (R-Iowa) echoed Cotton in saying the evidence as presented was insufficient, but he faulted Trump: “And even if we assume he has been, the House Managers still did not prove that he committed incitement to insurrection, the specific crime of which he stands accused. This does not excuse President Trump’s conduct on and around January 6 of this year.”

Sen. John Hoeven (R-N.D.) said: “President Trump should not have encouraged the protest on January 6, but those rioters who broke the law are responsible for their actions and we must condemn all those who engage in violence.”

Sen. Kevin Cramer (R-N.D.) went further than most in saying explicitly that Trump’s offenses weren’t worthy of conviction, but he, too, faulted Trump for “reckless” rhetoric.

“The Jan. 6 attacks on the Capitol were appalling, and President Trump’s remarks were reckless, but based on the evidence presented in the trial, he did not commit an impeachable offense,” Cramer said. “Therefore, I voted to acquit former president Trump.”

That kind of statement — directly saying Trump was not guilty on the merits — was pretty rare, though. And even in it, Cramer seemed to allow for the idea that additional information might be more incriminating.

It doesn’t necessarily mean that 67 senators would have voted to convict if he were still president (and perhaps if the trial had been more robust). If that threshold had ever been in play, Republicans would have felt more pressure to fall in line. But their statements suggest those votes might well have crept into the 60s.

Some might even argue that they dodged, they hid behind procedure, and they refused to use their authority to enforce the Constitution.