(Feb. 14) For those who want to get into the weeds about impeachment trial procedures and standards, it must be said that Mitch McConnell was not duty-bound to vote to acquit Donald Trump if he thought the trial wasn’t constitutionally proper.

McConnell’s decision was a judgment call, not a matter of an oath-bound necessity.

To understand this, let’s set aside the question of whether McConnell was right that the Constitution doesn’t provide for a Senate trial for a former official. (The Congressional Research Service and dozens of conservative constitutional scholars think McConnell’s take was wrong on textual/grammatical/punctuational analysis, wrong on precedent, wrong on history, wrong according to notes from the Constitutional Convention, and wrong on logic – or some combination of those factors – but for this discussion, that’s immaterial.) Let’s just assume McConnell is correct that “while there is no doubt this is a very close question,” the “best constitutional reading” is that the Senate’s jurisdiction ends when an official no longer holds office.

The question is, does that mean McConnell should have voted not to convict Trump? Answer: It’s an open question but not necessarily.

To understand this, it helps to understand that when the Senate tries an impeachment, it takes on a role completely different from its ordinary legislative functions.

I wholeheartedly believe that in the normal course of business, a senator absolutely must not vote in favor of a bill he believes is unconstitutional. His oath requires that of him. On the other hand, when the Senate tries an impeachment, the Constitution gives it the “sole” power to act, and it acts not as a legislative body but as a juridical one. As a juridical (or even quasi-juridical) body, its own determination of jurisdiction is quite arguable binding on its own members (unless and until overruled by the U.S. Supreme Court, which is extremely unlikely)….

[The full column is here.]


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