[Congressional Record Volume 167, Number 28 (Saturday, February 13, 2021)]
[Senate]
[Pages S735-S736]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
IMPEACHMENT
Mr. McCONNELL. Mr. President, January 6 was a disgrace. American
citizens attacked their own government. They used terrorism to try to
stop a specific piece of domestic business they did not like. Fellow
Americans beat and bloodied our own police. They stormed the Senate
floor. They tried to hunt down the Speaker of the House. They built a
gallows and chanted about murdering the Vice President. They did this
because they had been fed wild falsehoods by the most powerful man on
Earth because he was angry he lost an election.
Former President Trump's actions preceding the riot were a
disgraceful--disgraceful--dereliction of duty.
The House accused the former President of ``incitement.'' That is a
specific term from the criminal law.
Let me just put that aside for a moment and reiterate something I
said weeks ago. There is no question--none--that President Trump is
practically and morally responsible for provoking the events of the
day. No question about it. The people who stormed this building
believed they were acting on the wishes and instructions of their
President, and having that belief was a foreseeable consequence of the
growing crescendo of false statements, conspiracy theories, and
reckless hyperbole which the defeated President kept shouting into the
largest megaphone on planet Earth.
The issue is not only the President's intemperate language on January
6. It is not just his endorsement of remarks in which an associate
urged ``trial by combat.'' It was also the entire manufactured
atmosphere of looming catastrophe; the increasingly wild myths--myths--
about a reverse landslide election that was somehow being stolen in
some secret coup by our now-President.
Now, I defended the President's right to bring any complaints to our
legal system. The legal system spoke. The electoral college spoke. As I
stood up and said clearly at that time, the election was settled. It
was over. But that just really opened a new chapter of even wilder--
wilder--and more unfounded claims.
The leader of the free world cannot spend weeks thundering that
shadowy forces are stealing our country and then feign surprise when
people believe him and do reckless things.
Now, sadly, many politicians sometimes make overheated comments or
use metaphors--we saw that--that unhinged listeners might take
literally, but that was different. That is different from what we saw.
This was an intensifying crescendo of conspiracy theories, orchestrated
by an outgoing President who seemed determined to either overturn the
voters' decision or else torch our institutions on the way out.
The unconscionable behavior did not end when the violence actually
began. Whatever our ex-President claims he thought might happen that
day, whatever reaction he says he meant to produce, by that afternoon,
we know he was watching the same live television as the rest of us. A
mob was assaulting the Capitol in his name. These criminals were
carrying his banners, hanging his flags, and screaming their loyalty to
him.
It was obvious that only President Trump could end this. He was the
only one who could. Former aides publicly begged him to do so. Loyal
allies frantically called the administration. The President did not act
swiftly. He did not do his job. He didn't take steps so Federal law
could be faithfully executed and order restored. No. Instead, according
to public reports, he watched television happily--happily--as the chaos
unfolded. He kept pressing his scheme to overturn the election.
Now, even after it was clear to any reasonable observer that Vice
President Pence was in serious danger, even as the mob carrying Trump
banners was beating cops and breaching perimeters, the President sent a
further tweet attacking his own Vice President. Now, predictably and
foreseeably under the circumstances, members of the mob seemed to
interpret this as a further inspiration to lawlessness and violence,
not surprisingly.
Later, even when the President did halfheartedly begin calling for
peace, he didn't call right away for the riot to end. He did not tell
the mob to depart until even later. And even then, with police officers
bleeding and broken glass covering Capitol floors, he kept repeating
election lies and praising the criminals.
In recent weeks, our ex-President's associates have tried to use the
74 million Americans who voted to reelect him as a kind of human shield
against criticism--using the 74 million who voted for him as kind of a
human shield against criticism. Anyone who decries his awful behavior
is accused of insulting millions of voters. That is an absurd
deflection. Seventy-four million Americans did not invade the Capitol.
Hundreds of rioters did. Seventy-four million Americans did not
engineer the campaign of disinformation and rage that provoked it. One
person did it--just one.
Now, I have made my view of this episode very plain. But our system
of government gave the Senate a specific task. The Constitution gives
us a particular role. This body is not invited to act as the Nation's
overarching moral tribunal. We are not free to work backward from
whether the accused party might personally deserve some kind of
punishment.
Justice Joseph Story was our Nation's first great constitutional
scholar. As he explained nearly 200 years
[[Page S736]]
ago, the process of impeachment and conviction is a narrow tool--a
narrow tool--for a narrow purpose. Story explained this limited tool
exists to ``secure the state against gross official misdemeanors'';
that is, to protect the country from government officers.
If President Trump were still in office, I would have carefully
considered whether the House managers proved their specific charge. By
the strict criminal standard, the President's speech probably was not
incitement. However--however--in the context of impeachment, the Senate
might have decided this was acceptable shorthand for the reckless
actions that preceded the riot. But in this case, the question is moot
because former President Trump is constitutionally not eligible for
conviction.
Now, this is a close question, no doubt. Donald Trump was the
President when the House voted, though not when the House chose to
deliver the papers. Brilliant scholars argue both sides of this
jurisdictional question. The text is legitimately ambiguous. I respect
my colleagues who reached either conclusion.
But after intense reflection, I believe the best constitutional
reading shows that article II, section 4 exhausts the set of persons
who can legitimately be impeached, tried, or convicted. It is the
President. It is the Vice President and civil officers. We have no
power to convict and disqualify a former office holder who is now a
private citizen.
Here is article II, section 4: ``The President, Vice President and
all civil Officers of the United States, shall be removed from Office
on Impeachment for, and Conviction of, Treason, Bribery, or other high
Crimes and Misdemeanors.''
Now, everyone basically agrees that the second half of that sentence
exhausts the legitimate grounds for conviction. The debates around the
Constitution's framing make that abundantly clear. Congress cannot
convict for reasons besides those. It therefore follows that the list
of persons in that same sentence is also exhaustive. There is no reason
why one list--one list--would be exhaustive but the other would not.
Article II, section 4 must limit both why impeachment and conviction
can occur and to whom--and to whom. If this provision does not limit
impeachment and conviction powers, then it has no limits at all. The
House's ``sole power of Impeachment'' and the Senate's ``sole Power to
try all Impeachments'' would create an unlimited circular logic,
empowering Congress to ban any private citizen from Federal office.
Now, that is an incredible claim. But it is the argument the House
managers seemed to be making. One manager said the House and Senate
have ``absolute, unqualified . . . jurisdictional power.'' Well, that
was very honest, because there is no limiting principle in the
constitutional text that would empower the Senate to convict former
officers that would not also let them convict and disqualify any
private citizen--an absurd end result to which no one subscribes.
Article II, section 4 must have force. It tells us the President, the
Vice President and civil officers may be impeached and convicted.
Donald Trump is no longer the President.
Likewise, the provision states that officers subject to impeachment
and conviction ``shall be removed from Office if convicted''--``shall
be removed from Office if convicted.''
As Justice Story explained, ``the Senate, [upon] conviction, [is]
bound in all cases, to enter a judgment of removal from office.''
Removal is mandatory upon conviction. Clearly, he explained, that
mandatory sentence cannot be applied to someone who has left office.
The entire process revolves around removal. If removal becomes
impossible, conviction becomes insensible.
In one light, it certainly does seem counterintuitive that an
officeholder can elude Senate conviction by resignation or expiration
of term--an argument we heard made by the managers. But this
underscores that impeachment was never meant to be the final forum for
American justice--never meant to be the final forum for American
justice. Impeachment, conviction, and removal are a specific
intragovernmental safety valve. It is not the criminal justice system,
where individual accountability is the paramount goal.
Indeed, Justice Story specifically reminded that while former
officials were not eligible for impeachment or conviction, they were--
and this is extremely important--``still liable to be tried and
punished in the ordinary tribunals of justice.''
Put another way, in the language of today, President Trump is still
liable for everything he did while he was in office, as an ordinary
citizen--unless the statute of limitations is run, still liable for
everything he did while he was in office. He didn't get away with
anything yet--yet. We have a criminal justice system in this country.
We have civil litigation, and former Presidents are not immune from
being accountable by either one.
I believe the Senate was right not to grab power the Constitution
doesn't give us, and the Senate was right not to entertain some light-
speed sham process to try to outrun the loss of jurisdiction.
It took both sides more than a week just to produce their pretrial
briefs. Speaker Pelosi's own scheduling decisions conceded what
President Biden publicly confirmed: A Senate verdict before
Inauguration Day was never possible.
Now, Mr. President, this has been a dispiriting time, but the Senate
has done our duty. The Framers' firewall held up again. On January 6,
we returned to our post and certified the election. We were uncowed. We
were not intimidated. We finished the job. And, since then, we resisted
the clamor to define our own constitutional guardrails in hot pursuit
of a particular outcome. We refused to continue a cycle of recklessness
by straining our own constitutional boundaries in response.
The Senate's decision today does not condone anything that happened
on or before that terrible day. It simply shows that Senators did what
the former President failed to do: We put our constitutional duty
first.
The PRESIDING OFFICER. The Senator from Maryland.
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