Amidst a host of substantive reasons why senators should find Donald Trump guilty of impeachable offenses, a purely political reality should be vivid in their consciousness. Each senator who votes to acquit will be faced, in his next election, with TV ads featuring Capitol Police being crushed, while blaming the senator for doing nothing to penalize the instigator.

Do Republicans Ron Johnson in Wisconsin and Marco Rubio in Florida, for example, really want to face general elections where they are confronted with this video?:

(Click on this link!)


The ad writes itself: “Officer Daniel Hodges was nearly crushed by a mob attacking our democracy. Vice President Pence came within a minute of being killed. But Marco Rubio refused to punish the instigator. Little Marco failed in a crisis. Florida needs a new senator who will stand tall.”

Similar commercials will bedevil every senator who doesn’t do the right thing by voting to convict Trump for mob incitement and dereliction of duty. And those senators will deserve it – because on every level, conviction is indeed the right thing.

In this image from video, a security video shows Vice President Mike Pence being evacuated as rioters breach the Capitol, as House impeachment manager Del. Stacey Plaskett, D-Virgin Islands, speaks during the second impeachment trial of former President Donald Trump in the Senate at the U.S. Capitol in Washington, Wednesday, Feb. 10, 2021. (Senate Television via AP)

Senators cannot hide behind the claim that an after-term trial of Trump is unconstitutional, because they are wrong on both the claim and on its application. On the claim itself, it is overwhelmingly clear that the Constitution’s framers understood after-office impeachment as the norm. In fact, they thought the big question was whether, as delegate Charles Pinckney put it, he should also be impeachable “whilst in office.” Pinckney thought no, but delegate William Davie won the day when he argued that impeachment “whilst in office” would be “an essential security for the good behavior of the Executive.”

But nobody – nobody – argued that impeachment could not occur after the offending official left office. That’s how almost every impeachment in British and American history had proceeded – including Virginia’ attempted impeachment of former governor Thomas Jefferson.

Even if senators want, against all evidence, to argue otherwise, that argument should be considered mooted by the Senate’s vote to rule that the trial is constitutional. While on ordinary legislation, senators should never vote for a bill they consider unconstitutional, the Senate in an impeachment trial is a different animal. As a quasi-juridical body, the full Senate becomes the determinant of all questions of law pertaining to its deliberations. It is quite arguable that once the determination has been made, individual senators are bound to accept it – with a rather loose but not inapt analogy of how federal district court judges must abide by the rulings of the Supreme Court.

Once the determination of constitutionality has been made, senators are duty-bound to jettison their constitutional objections and decide the case on the merits.

On the overwhelming merits, Trump was guilty. Trump personally requested the rally for precisely the day when Congress could be intimidated into not counting electoral votes. It was well known beforehand that the rally portended serious violence (although not necessarily a Capitol breach). Before and during the rally, Trump repeatedly used martial language while telling supporters to march on the Capitol and that they, the rioters, would be “allowed to go by very different rules.”

And after the rioters were inside the Capitol yelling that Pence and Speaker Nancy Pelosi should be executed, not only did Trump refuse for two hours to do or say anything to call off the thugs, but he repeated his Twitter assault against Pence after he was told Pence was in harm’s way.

Many dozens of police officers were injured, some gravely, after Trump knew about but did not stop the carnage. Do senators facing re-election really want to be forced to answer for that?



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