[Congressional Record Volume 167, Number 27 (Friday, February 12, 2021)]
[Senate]
[Page S702]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPEACHMENT
Mr. CRUZ. Mr. President, I ask unanimous consent that the following
op-ed be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Fox News, Feb. 9, 2021]
Sen. Ted Cruz: Should the Senate Exercise Impeachment Trial? Why the
Answer Matters
(By Ted Cruz)
The constitutional question of whether a former president
can be impeached or tried after he has left office is a close
legal question. On balance, I believe that the better
constitutional argument is that a former president can be
impeached and tried--that is, that the Senate has
jurisdiction to hold a trial.
However, nothing in the text of the Constitution requires
the Senate to choose to exercise jurisdiction. In these
particular circumstances, I believe the Senate should decline
to exercise jurisdiction--and so I voted to dismiss this
impeachment on jurisdictional grounds.
Article I, Section 2 of the Constitution gives the House
``the sole Power of impeachment,'' and Section 3 gives the
Senate ``the sole Power to try all impeachments.'' At the
time the Constitution was adopted, there was meaningful
debate over whether impeachment encompassed so-called ``late
impeachments.'' i.e. after the person had left office.
The British common law, which informed the understanding of
the Founders, suggests that the better answer is yes.
In the 18th century, there were two English impeachments of
note: Lord Chancellor Macclesfield in 1725 and India's
Governor-General Warren Hastings, which extended from 1787 to
1795. Both were late impeachments (after they had left
office). Shortly after the Founding, a third British
impeachment occurred: Lord Melville in 1806. His impeachment
also occurred after he left office.
The American experience is similar. In 1797, the House
impeached Sen. William Blount, and in 1876 the House
impeached Secretary of War William Belknap. Both had left
office by the time articles of impeachment were delivered to
the Senate.
With Blount, the Senate voted that it lacked jurisdiction
(although principally because he had been a senator and not a
member of the executive), and with Belknap, the Senate voted
that it had jurisdiction but declined to convict.
To be sure, there is textual ambiguity on the question of
whether impeachments of a former president are
constitutional.
One can look to other provisions of the Constitution--such
as article II, Section 4's reference to ``the President''
(not ``a President''), and that same section's language that
says an impeached individual who is convicted ``shall be
removed from office''--and conclude in good faith that late
impeachments are not permissible.
However, given the historical underpinnings and the
Constitution's broad textual commitment (``sole power'') of
the impeachment power to the House and Senate, I believe the
best reading of the Constitution is that the Senate retains
jurisdiction. Imagine, for example, that evidence were
uncovered that a former president had sold nuclear secrets to
the Chinese government. In that instance, where the president
had hypothetically committed both treason and bribery
(explicit grounds for impeachment in the Constitution), there
is little question that both the House and Senate would have
exercise jurisdiction to impeach and try those crimes.
Importantly, there are two types of jurisdiction: mandatory
and discretionary. With mandatory jurisdiction, the tribunal
must hear the case; with discretionary jurisdiction, the
tribunal can decide whether to exercise its legal authority
to hear the case. For example, the vast majority of the
Supreme Court's caseload arises on discretionary
jurisdiction--it has the authority to hear most cases, but it
doesn't have to do so.
And nothing in the Constitution makes the Senate's
impeachment jurisdiction mandatory. ``Sole power'' means
``sole power''--the Senate can decide whether to hear the
case.
The present impeachment is an exercise of partisan
retribution, not a legitimate exercise of constitutional
authority.
The House impeached President Trump in a mere seven days.
It conducted no hearings. It examined no evidence. It heard
not a single witness.
For four years, congressional Democrats have directed
hatred and contempt at Donald J. Trump, and even greater fury
at the voters who elected him.
On the merits, President Trump's conduct does not come
close to meeting the legal standard for incitement--the only
charge brought against him.
His rhetoric was at times over-heated, and I wish it were
not, but he did not urge anyone to commit acts of violence.
And if generic exhortations to ``fight'' or ``win'' or ``take
back our country'' are now indictable, well, be prepared to
arrest every candidate who's ever run for office or given a
stump speech.
House Democrats argue that these circumstances are
different. The situation was politically charged. The
protesters were angry. And what started as a peaceful protest
on the Ellipse ended up with some of the protestors engaging
in a violent terrorist assault on the Capitol that tragically
took the life of a police officer.
If that's the new standard--and if strong rhetoric
constitutes ``High Crimes and Misdemeanors''--then Congress
better prepare to remove House Speaker Nancy Pelosi, D-
Calif., Rep. Maxine Waters, D-Calif., Sen. Chuck Schumer, D-
N.Y. and former Sen. Kamala Harris, D-Calif., next.
Repeatedly over the past four years, multiple Democrats
have engaged in incendiary rhetoric and encouraged civil
unrest, including Speaker Nancy Pelosi who expressly compared
law enforcement to Nazis, Rep. Waters, who emphatically
encouraged a campaign of intimidation and harassment of
political opponents, Sen. Schumer, who made threats--by
name--to ``release the whirlwind'' against two sitting
justices of the Supreme Court, and then-Sen. Harris, who
actively campaigned to provide financial support, in the form
of bail, for rioters last summer even after hundreds of law
enforcement officers were injured and many people, including
retired St. Louis police captain David Dorn, were brutally
murdered.
There is no coherent rationale that renders President
Trump's remarks ``incitement,'' and somehow exonerates the
angry rhetoric of countless Democrats. If Trump's speech at
the Ellipse was incitement, so too was Schumer's threat on
the steps of the Supreme Court.
The honest answer is both may have been irresponsible, but
neither meets the legal standard for incitement.
Accordingly, I voted against the Senate taking jurisdiction
in this trial. In different circumstances, the Senate could
choose to exercise its constitutional authority to try a
former office-holder. But here, when the House has impeached
without evidence or Due Process, and when it is petty and
vindictive and it fails to meet the legal standard, then the
Senate should have declined to exercise jurisdiction.
President Trump is no longer in office, and nothing is
served--other than partisan vengeance--by conducting yet
another impeachment trial.
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