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David Burns: In voting to acquit Trump, Sen. Mike Lee showed the factionalism the founders hoped to avoid

The trial was constitutional, and Trump’s guilt was obvious to anyone who was willing to do impartial justice.

In this image from video, senators gather around Senate Majority Leader Chuck Schumer of N.Y., and House impeachment manager Rep. Jamie Raskin, D-Md., bottom left, after Sen. Mike Lee, R-Utah, made an objection to evidence presented by House impeachment managers 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)

On Feb. 13, Utah’s Sen. Mike Lee voted to acquit the former president, Donald Trump, on the House impeachment article of incitement of insurrection. This was a political vote on a political question, and within his discretion, but he needs to drop the pretense that he acted on principle. His vote was based on nothing more than extreme partisanship.

The poet Carl Sandburg famously said, “If the facts are against you, argue the law.” Lee argues the law in his defense of his vote, challenging the constitutionality of the proceeding and the sufficiency of the evidence. (For their defense, Trump’s lawyers relied on the third part of Sandburg’s dictum: “If the law and the facts are against you, pound the table and yell like hell.”)

In a Facebook post, Lee explained why he refused to convict, arguing that “the Senate should never have exercised jurisdiction over this Article [of impeachment] in the first place.”

That’s incorrect, and I know this with absolute certainty because a majority of the senators voted not once but twice to confirm that the trial was constitutional. Under Section VII of the Senate Rules on Impeachment Trials, a majority of the senators has the final say on all questions of law, including jurisdiction.

It was for that reason that the House lead impeachment manager, Rep. Jaime Raskin, in the closing moments of the trial, reminded Lee and the other senators that they could not base their verdict on a technical claim that the tribunal lacked jurisdiction. The constitutional question was settled — lawyers call it the law of the case — and Lee had no right to base his final decision on it. Otherwise, every vote on a legal question becomes a final vote on conviction requiring a two-thirds supermajority.

The most important thing to know about constitutional impeachments is that they are political proceedings. An impeachment trial has many of the trappings of a judicial courtroom — a judge, lawyers, jurors, procedures and evidence — but it is a unique creation of the Constitution. It’s a special way for our political system to defend itself. Nothing more, nothing less.

Alexander Hamilton wrote that impeachment trials are “political, as they relate chiefly to injuries done immediately to the society itself.” (The Federalist No. 65.) Because impeachment is limited to accountability for abuses of the public trust, the remedies are also limited: removal, which stops the injuries to society caused by an official’s misconduct, and disqualification from holding future office, which prevents the injuries from ever happening again. They are separate remedies, although for the Senate to disqualify, the official must first be convicted.

Notice, in his statement, Lee never tells us why he believes an impeachment trial after an official leaves office is a bad idea. He argues instead that it’s never been done — which is untrue — and to make that claim he relies on a deception.

Lee’s statement includes a misleading description of the congressional impeachment history: “Convicting a former official would be an unprecedented and constitutionally dubious step — never before has the Senate convicted an impeached official after that official has left office.” True, no former official has been convicted after leaving office, but that’s beside the point.

Lee knows that in the 1876 impeachment of Secretary of War William Belknap for bribery, both the House and Senate decided by majority votes that they had jurisdiction to proceed with impeachment after Belknap had resigned from office. After he resigned, Belknap was impeached by the House for misconduct while in office, but the Senate failed to muster a two-thirds majority to convict. The Belknap precedent supports the House manager’s argument that the impeachment trial was constitutional.

The consensus is that the Senate may try a former president after he has left office. According to the Congressional Research Service, Congress’s non-partisan think tank, “most scholars who have closely examined the question have concluded that Congress has authority to extend the impeachment process to officials who are no longer in office.” A bipartisan group of more than 170 constitutional law scholars came to the same conclusion before the impeachment trial began.

Lee’s second alleged reason for voting to acquit was that the House managers had failed to prove the former president “committed the high crime of inciting an insurrection.” The “House managers repeatedly relied on hearsay, erroneous media reports, and political rhetoric rather than evidence.”

Not true. The evidence presented — mostly undisputed video footage of the mob’s attack on the Capitol, Trump’s speech at the Ellipse just before the attack and Trump’s Twitter campaign to overturn the election results in the 77 days leading up to Jan. 6 — was reliable and overwhelming.

The evidence showed that the former president violated his oath of office, justifying conviction. And if the defense objected to the evidence, they could have presented their own, but they declined to do so, using only 2.5 of their allotted 16 hours to show irrelevant video clips and to make irrelevant free speech claims.

But don’t take my word for it. A bipartisan group of 57 senators/jurors found that the former president had in fact committed an impeachable offense while in office. Lee’s decision to acquit was the clear minority view. This bloc of senators who voted to convict represent almost 77 million more American voters than the 43 Republican senators who voted to acquit. Or listen to Republican Sen. Mitch McConnell, who, after the trial, said Trump is “practically and morally responsible for provoking” the siege at the Capitol.

As “jurors” in a political proceeding, the senators in an impeachment trial can’t really violate their swearing-in oaths, because there’s nothing that holds them to it. That’s why McConnell could say, before Trump’s first impeachment trial, he would run the trial in “total coordination” with the White House; or why Sen. Lindsay Graham and other Republicans felt free to meet with Trump’s lawyers during the second impeachment trial.

While Lee can’t be blamed for making a political vote on a political question, he can be held to account for his lack of judgment, bad faith and failure to honor his oath of office.

The trial was constitutional, and Trump’s guilt was obvious to anyone who was willing to do impartial justice. Lee’s stated reasons for voting to acquit are easily punctured pretexts for the political partisanship that was at the root of his decision. And his vote was a refusal to support and defend the Constitution, which is put at greater risk by Trump’s continued right to run for president in 2024, win or lose.

In The Federalist, Hamilton described the reasoning of the Constitutional Convention for why they decided, after a lengthy debate, to hold impeachment trials in the Senate.

“The Convention thought the Senate the most fit depository of this important trust. Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve unawed and uninfluenced the necessary impartiality between an individual accused, and the representatives of the people, his accusers?”

Today, we can recognize in Sen. Mitt Romney and the other six Republican senators who voted for conviction the qualities the Framers thought necessary, justifying their choice of the Senate. And in Lee we recognize the factionalism and extremism that they hoped to avoid.

David Burns

David Burns has degrees in history and law. He lives in Salt Lake City.

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