McConnell’s impeachment decision was understandable but mistaken

To understand this, let’s set aside the question of whether McConnell was right that the Constitution doesn’t provide for a Senate trial for a former official. (The Congressional Research Service and dozens of conservative constitutional scholars think McConnell’s take was wrong on textual/grammatical/punctuational analysis, wrong on precedent, wrong on history, wrong according to notes from the Constitutional Convention, and wrong on logic – or some combination of those factors – but for this discussion, that’s immaterial.) Let’s just assume McConnell is correct that “while there is no doubt this is a very close question,” the “best constitutional reading” is that the Senate’s jurisdiction ends when an official no longer holds office.

The question is, does that mean McConnell should have voted not to convict Trump? Answer: It’s an open question but not necessarily.

To understand this, it helps to understand that when the Senate tries an impeachment, it takes on a role completely different from its ordinary legislative functions.

I wholeheartedly believe that in the normal course of business, a senator absolutely must not vote in favor of a bill he believes is unconstitutional. His oath requires that of him. On the other hand, when the Senate tries an impeachment, the Constitution gives it the “sole” power to act, and it acts not as a legislative body but as a juridical one. As a juridical (or even quasi-juridical) body, its own determination of jurisdiction is quite arguable binding on its own members (unless and until overruled by the U.S. Supreme Court, which is extremely unlikely). In other words, once the whole Senate, acting according to its agreed-upon rules, determines that it does have constitutional jurisdiction, then the individual senators should accept that determination and adjudge the impeachment solely on the merits.

In sum, the constitutional question becomes moot.

Think of it this way: If a three-judge panel of a federal appeals court rules that the court lacks jurisdiction on a certain case, but the whole appeals court en banc decides that jurisdiction is indeed proper and thus sends the case back to the panel to decide on the merits, then, by gosh, the panel must decide on the merits. Its judgment of jurisdictional constitutionality has been overruled by a higher authority.

Each individual senator is in somewhat the same position as that three-judge panel. His oath to the Constitution includes an oath to respect a higher constitutional authority — and in this case, the full Senate is a higher constitutional authority than the individual senator is.

A man with McConnell’s vast Senate experience surely understands this. The argument is especially strong if, as McConnell says, the constitutional issue was for him a “very close question.” If it’s close, he, of course, is right on the jurisdictional question to vote his conscience, but he has all the more reason to defer to higher authority once the actual trial begins.

Here’s the caveat: Just as there is no absolute requirement that a senator abide by his own sense of what is constitutional, there also is no requirement that he defer to the full Senate. There are so many gray areas in the rarely used impeachment power that much of it is a matter of prudential judgment. Still, the precedent from the 1876 impeachment trial of former Secretary of War William Belknap argues in favor of senators adjudging cases on the merits even while harboring constitutional doubts. Two senators openly did what McConnell did not: voted to convict even though they earlier had voted that they lacked jurisdiction. (Others did just the opposite, leaving it an open question.)

When in doubt on matters of impeachment, I usually turn to former federal prosecutor Andrew McCarthy, who wrote a whole book on the subject and whose even-handed judgment is well known. Last Wednesday, three days before McConnell faced the decision, I asked McCarthy what he thought.

“I believe there are two good faith answers to this question,” he wrote in reply (but with my emphasis added). “1. If a senator were truly convinced that the Senate lacks jurisdiction for constitutional reasons, and that the rest of the Senate is irrationally wrong in concluding otherwise, that senator could properly consider him- or herself to be honor bound to acquit on jurisdictional grounds. … 2. If a senator believed that reasonable minds could disagree on a jurisdictional question, and that because we’re not a monarchy we should honor a conclusion by the body constitutionally entitled to make the decision, that senator could in good faith vote to convict even though he was in the minority on the jurisdictional question. I don’t think either one of these is the definitive right answer. They’re both defensible.”

Republican Sen. Richard Burr, like the two senators in the Belknap trial, determined that he should defer to the full Senate and vote on the merits. McConnell, on the other hand, while admitting that “rational … reasonable minds” could do as Burr did, nonetheless put his “very close” judgment above the will of the Senate. As a Senate institutionalist, McConnell should have been expected to do the opposite — unless, perhaps, he was absolutely convinced his judgment on the constitutional question was the only reasonable one.

McConnell was only conditionally convinced. And he never even addressed the central issue of the Senate’s own plenipotentiary power to determine its own jurisdiction, especially in light of constitutional text giving it the power to try “all” impeachments. McConnell was faced by an official duly impeached while that official was in office, but he refused to consider the merits. For that reason, I believe he erred.

Either way, what is clear is that he decided on prudential grounds, not ones on which conscience and precedent gave him no other choice.