[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.

                          ____________________