I was out grocery shopping on a freezing rain day when the Senate voted to acquit 57-43, 10 votes shy of the supermajority required. I'll probably have more to say about that in a future post. (I favored conviction.)
But what caught my attention was a riveting statement from Mitch McConnell, Senate Minority Leader, who gave perhaps the strongest Trump criticism on the events of Jan. 6 that I've heard from any Republican which basically validated the substance of the House impeachment manager's case. Was this a separate motion to bar Trump from holding office in the future? I thought I heard a discussion the other day from one of the House managers that the incitement vote had to be 67 votes but a disqualification vote just required a simple majority. Was this McConnell arguing to disqualify Trump from holding office again? No.
McConnell then went onto a legalistic, textualist argument that Trump is no longer a public official and hence cannot be tried by the Senate; He ridiculed the slippery slope of the Senate trying private citizens. He further argues that Trump is not off the hook for related criminal or civil lawsuits. The latter point is certain interesting; there were reasons why Ford pardoned Nixon after Nixon resigned from office. Note that I have issues with the pardon, especially given the fact Nixon hadn't even been charged with a federal crime, and Ford's pardon short-shrifted any relevant investigations.
However, and this was a point constantly repeated by Trump's defense with respect to the Brandenburg incitement test. I think it's very difficult to prove that Trump knew or intended a violent protest and invasion of the Capitol. It may be Trump wanted protesters in the gallery. I haven't seen much discussion in the media if the gallery/galleries were open for the Jan. 6 session; my understanding is that there is limited seating if the gallery is open and you generally have to request tickets in advance from a Congressman or Senator. I do see a Dec. 31 Rollcall note of enhanced security for the risk of potentially violent demonstrations (sadly, that plan obviously failed). One thing is for sure: most protesters would not have a pass to attend.
The better argument, in my view, was dereliction of duty. Let's point out that Trump has been reluctant to criticize his far-right, violence-prone supporter groups, like the Proud Boys, who he infamously once said to "stand back and stand by". He had to know holding a rally in DC on the day of certification of Biden's election, which he opposed, he was playing with fire and that some of his "impassioned" supporters might confront security "to stop the steal". The media, like Rollcall above, were buzzing with rumors of a violent clash. There were parleys (tweets) on Parler by agitators. The FBI and National Guard approached Capitol security to proactively offer reinforcements. Trump had to know (because everyone did) about the security risks., and yet he held the rally anyway. Perhaps these were unintended consequences, but he is morally and legally responsible for them. What's worse is once security was breached, his reactions were delayed and inadequate, often in an irrelevant state of denial (i.e., trying to scapegoat Antifa in the infamous phone call with House Minority Leader McCarthy, where the Congressman urged him to call off his minions. Trump also flamed Pence as being disloyal during the crisis, throwing him under the bus, and it was no accident you saw the makings of a lynch mob agitating to "hang Pence". What is indisputable is the certification of the electoral vote is a Constitutional requirement, and Trump took an oath to uphold the Constitution, even if he disagreed with its likely outcome. Trump put his own parochial interest--his reelection--above the national interest, and that is unforgiveable.
But returning to McConnell's argument, I've been saying for some time (and I've heard variants of this arguments by others, including the House managers and CNN commentators), the impeachment sanction applies to misconduct on a public official or President's entire time of office--up to and including his last day of his term. Now logistically it would all but impossible to impeach and convict a President on late-term misconduct, not to mention that a President might be tempted to resign to avoid Senate conviction and consequences of the trial, including ineligibility for future office. Certainly the Constitution framers didn't intend a double standard of Presidential behavior, one not applicable late in his term or intended to incentivize game playing. And let's put out there there are precedents for impeaching and trying former federal officials for misconduct in office.
