[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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