Impeachment: 43% of One Cheer for Mitch McConnell!

By
Greg Diamond
– February 13, 2021Posted in: Fresh Juice, impeachment

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Mitch McConnell is a bad person — but he may have just done a lot to exorcise Trumpism from the nation’s soul

This afternoon, the Senate declined to convict disgraced former President Donald Trump from office, receiving only 57 of the 67 votes it needed to do so.  Still 7 of the 50 members of Trump’s party (14%) voted to remove him, which, in the immediate wake of the vote seemed like at least lukewarm comfort.  The comfort got a little warmer when Democratic Senate Majority Leader Chuck Schumer spoke and reviewed the panoply of criticisms against Trump (and his lawyers’ arguments.)  Then, I heard that Minority Leader Mitch McConnell  would be speaking next, and I inwardly groaned and almost turned off my video stream.

I’m so glad that I didn’t.  It was the best speech of McConnell’s career — and it heated up the comfort with the result quite nicely.

McConnell explained that he had felt compelled to acquit Trump based, essentially, on a technicality: that the relevant governing constitutional provision does not allow for impeachment of former officeholders.  But this came only at the end of a speech devoted essentially to how much Trump had deserved to have his ass handed to him for his actions.  It was amazing.

I’m going to copy over much of what I’ve written about this on Facebook, not bothering to indent it:

I really appreciated Schumer’s speech after the verdict, which I hope will make it into the history books as well. Now McConnell — who just voted to acquit — is giving what so far is the best speech of his life, flaying Trump so thoroughly and effectively — seriously, it will be useful in convincing people that Trump is not worthy of their respect — that I couldn’t figure out how he was going to explain his vote. It turned out that he doesn’t think that he doesn’t think that the Senate can convict former officeholders, which he calls a close question.

McConnell ends by saying that Trump is still legally liable in criminal and civil court for his actions — which means that he should have to reject Trump’s claims of executive privilege and the like.

Saying that Trump was guilty but gets off an a technicality is, in my opinion, wrong — but, in the days and years of reckoning to come, it’s useful.

Let’s make the most of it. Let’s see how many of the Republicans who voted to acquit will publicly sign on to agree with him.

[My sister-in-law then chimes in to say how much she hates that self-serving asshole McConnell, and a friend from Manhattan challenges me by saying that he was just putting on a show for the big donors.  I respond:]

Asshole though he is, I think that he’s capable of clearing a low bar of not wanting to see government buildings overrun by murderous mobs.

I don’t think that it was mostly about the big donors for his own gain, or even for his party. But I think that he does want to save his party from ideological domination by Trump — first to keep Trump (and ideally his kids) off of future Presidential tickets, and also because of the “murderous mobs” thing.

He didn’t have to flay Trump in his speech. Frankly, having done so may put him, his wife, and his family at risk for violence — including assassination.  But one gets the sense that McConnell wasn’t bringing up the Constitutional provision allowing for Trump to be prosecuted in civil and criminal courts now that he’s out of office just as a clever dodge, but because he would really, really, really, really like to see it happen.  One could practically hear him licking his chops.

At any rate, I don’t find it hard to believe that McConnell — especially given what he and his party’s members just lived through — doesn’t want society to be left to the tender mercies  of truly violent mobs.  Right now, we’re on the precipice of a cliff where we could descend to violent mob control of our lives — frankly, THAT is just what a fascist malignant narcissistic racist misogynist bully like Trump wants.

No, that’s not the only struggle we face right now — but it’s one of the big ones. We’ll eventually control Covid-19, and that will restore much of the economy, and the Green New Deal is on track. But we are going the wrong way on race, gender, and violence under Trump — and we need to root his influence out root and stem.

If McConnell is with us on that, I’ll give him 43% of a cheer.

[To paraphrase my friend’s answer: Then he should have voted to impeach! He clearly incited the mob — and, as always, acted with impunity. Now he can run again in 2024.  Hopefully he’ll be too bogged down with lawsuits, or slain by gluttony]

His argument for not voting to impeach was simply that it wasn’t constitutionally permissible to impeach a former officeholder.

I think he’s wrong in that, for a reason I haven’t seen mentioned in quite the way I formulate it. I think that the Framers wrote the relevant clause in the Constitution as saying you can remove them (if they are in office) and bar them from future office (if they are not.) In other words, the difference between the two sanctions isn’t a mere choice of one option or both, but a temporal one.

Immediately upon conviction, the President is removed from office; AT THAT POINT they can be barred. If they already aren’t in office, you can skip the first sanction.
The defense’s argument that Trump can still face criminal prosecution is correct — it is also right in the Constitution — though I think that it will be complicated by Trump offering bullshit arguments based on Bush 43’s-era executive privilege and such. But McConnell’s statement that it was the alternative that allowed him not to vote to impeach should keep him from supporting Trump’s use of such arguments.

Constitutionally, it really is a close call — and, arguably, the Senate just this week had the final word in interpreting the Constitution through it’s earlier vote. (The Supreme Court can’t get involved.) That’s why Sen. Burr said he only now felt entitled to vote to impeach. But it was always one of the weaker points in the managers’ arguments — and while Raskin was right about it on policy grounds — especially if one adds that the impeachment and trial have to be taken in “hot pursuit” —  lawyers know that policy grounds don’t (generally) win out over Constitution provisions. The prospect of prosecution does actually take the wind out of the “January exception” argument.

Raskin was right that the issue has been constitutionally settled — but Trump’s attorneys were also arguably right, much as it kills me to admit, that notwithstanding that recent vote it was still ethically sufficient to permit Senators to vote no.  I would have voted yes, but because I think that we’re in a situation where stigmatizing Trump right down to his bones for his treasonous actions — and yes, he *should* be tried for treason! — outweighs a constitutional reservation that I think has between a 45%-55% chance of being right.  I think that our Framers, if here today, would agree — at least if they could get past our getting rid of their precious slavery.

Trump wasn’t sufficiently besmirched after the vote (though it was a good vote!), or after Schumer’s speech (though it was a good speech!).  McConnell’s unexpected — and unexpectedly devastating — speech will do less to besmirch Trump in history than the 57 votes of the impeachment itself, but it will do more than Schumer’s expected “dog-bites man” speech — and it will probably closer to the former.

In all, it’s good that the House pursued impeachment, even if it was likely doomed from the start, because History (as well as our present day) needed to see our Congress’s devastating response to it. (And the managers’ case against him was masterful.)

It’s good that the Senate decided to hear the case regardless of its constitutional infirmity, because otherwise that would have meant sweeping it all under the rug — an unacceptable result.

It’s disappointing that Trump was acquitted and not barred from future office — but, again, he’s pretty old and I care more about squelching his violent movement than him personally.  And it’s good that — and I hope to see other Senators agree with McConnell about this — if he was ultimately to be spared removal, it was based upon a technicality.

(By the way, Mitch’s point on timing has been misconstrued — he wasn’t saying that the problem was that the House didn’t send him the impeachment papers before Trump’s term expired, but because even if they had done it immediately, and even if the Senate had come back into session, there wasn’t time left to allow for a meaningful trial with due process — which is probably correct.  That isn’t the problem; the problem is whether it still could have been done in “hot pursuit” of Trump, in a way that it would not now be in hot pursuit of Obama or Hillary.)

It’s also good that Trump didn’t testify!  Raskin was wrong — does he really believe this? — that there’s no danger of Trump going to prison.  (Although personally I’d be satisfied with Trump being locked up in home arrest in Rudy Giuliani’s apartment!)  He is absolutely liable for a criminal conviction — he has no executive privilege or immunity left to protect him — and, without his having testified, now there’s no chance of his getting such a conviction overturned on Oliver North-style “use immunity” Fifth Amendment grounds.  (For those who think that Trump he won’t ever be convicted: just wait until Biden declassifies information on his private phone and in-person conversations with Putin!)

Finally, given the failure to convict him (after which a majority vote to bar him from office would have been a tap-in), it’s great that — after Schumer tore into Trump — McConnell did so with even more fervent effect.  Trump is disgraceful, and he has needed to be disgraced and — even in a technically failed impeachment — that has largely been accomplished.

It ain’t perfect — but it’ll do.  Now we just have to make the most of it!


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About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)