Senate acquits Trump despite ‘disgraceful’ conduct; lack of jurisdiction cited

Senate acquits Trump despite ‘disgraceful’ conduct; lack of jurisdiction cited

The Senate has acquitted Donald Trump in a 57-to-43 vote, with all Democrats, and 7 Republicans, voting to convict Trump. If the Senate trial had been held while Trump was still president, the number of votes to convict would probably have been higher. That’s because the Senate has jurisdiction to try a sitting president for “high crimes and misdemeanors.” But Senators noted that it was unclear whether the Senate has jurisdiction to try a former president like Trump. Of course, the criminal justice system can still prosecute Trump for any crimes he committed while in office.

As even the Republican minority leader observed, Trump helped provoke the January 6 siege of the Capitol, and did nothing to discourage the rioters as they rampaged through the Capitol — including a mob that chanted “Hang Mike Pence.” Instead, the President ignored pleas from Republicans in Congress that he condemn the rioting as it was occurring. That, the minority leader noted, was a “disgraceful dereliction of duty.”

But did the Senate have jurisdiction to convict Trump, given that his presidency had already ended? Most Republican senators, including the minority leader, thought it did not. As Senator McConnell put it, Trump was “not constitutionally eligible for conviction” due to his no longer being president.

Some legal scholars say no, the Senate lacks jurisdiction over former presidents like Trump, and Trump thus cannot be convicted by the Senate. As law professor Jonathan Turley notes, this view is shared by various “judges, professors, and figures like Justice Joseph Story,” who sat on the Supreme Court in the early 19th Century.

Other legal scholars say, yes, even former presidents can be convicted by the Senate of “high crimes and misdemeanors,” and disqualified from holding office in the future — even after they leave the White House.

The Cato Institute lawyer Roger Pilon says this is mistaken, and the Senate simply had no power to convict Trump, even though Trump’s conduct was reprehensible: “Minority [Leader] McConnell’s concluding statement was exactly right: Based on constitutional text, the Senate had no jurisdiction in this case, but Trump’s actions were reprehensible in the extreme. He is now subject to criminal prosecution.”

Trump’s lawyers pointed to Democrats’ hypocrisy, citing their sympathy for last year’s left-wing lawlessness and rioting. “When violent left-wing anarchists conducted a sustained assault on a federal courthouse in Portland, Oregon,” said Trump lawyer Michael van der Veen, the Democratic House “Speaker Pelosi did not call it an insurrection” or urge a halt to the attacks. “Instead she called the federal law enforcement officers protecting the building ‘stormtroopers.’”

As the National Review’s Robert Verbruggen notes, last year’s riots “destroyed businesses in cities across the country. This caused upwards of a billion dollars in damage, and if past is precedent, the places that suffered the riots will take years to recover economically. Somewhere around 20 people died. In response, some media outlets ran stories about how effective rioting is, and a liberal data analyst lost his job for tweeting a study finding that riots are actually politically counterproductive,” a finding that offended some progressives.

But that is not an excuse for anything Trump did. Trump’s conduct was disgraceful.

Tim Carney of the conservative Washington Examiner describes why Trump deserved to be convicted (assuming the Senate had jurisdiction to convict him):

Trump, through his destructive, self-serving, and dishonest efforts to overturn his election loss, inspired the attack on the Capitol, and such an attack was a foreseeable consequence of Trump’s actions…the clearest case involves Trump’s former vice president. Trump’s improper, cruel, and reckless attacks on Mike Pence before and during the Capitol riots predictably helped inspire rioters to storm the Capitol, seeking to abduct, harm, or even murder Pence….As his supporters stormed the Capitol, armed and violent and assaulting police, Trump was informed, in real time, by Sen. Tommy Tuberville that U.S. Capitol Police were escorting the vice president from the Senate floor to safety because they feared that the attackers would kill or harm Pence…a decent president would have immediately and forcefully tried to call the mob off….But Trump made it clear he didn’t want the mob to back off.

When he got off the phone with Tuberville, Trump took to Twitter to tell his followers that Pence was now the enemy. “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution…” The mob reacted as you would expect it to. Rioters were filmed reading this tweet aloud to other gathered rioters. “Donald Trump just tweeted saying that Mike Pence let us down,” one rioter explained over a bullhorn looking at the tweet. “Mike Pence let us down, people. If you wanna get something done, you gonna have to do it yourself.” And so, they did.

At least one of the mobs assaulting Capitol Police in its efforts to invade the U.S. Capitol was chanting, “Hang Mike Pence!” as it tried to breach the Capitol….Trump’s mob didn’t get Pence, thank God. It did successfully invade the Capitol, assault dozens of Capitol Police, bring about six deaths, and temporarily derail the certification of Joe Biden’s win. How did Trump react?… His words and deeds caused the violence to escalate. Especially when the assault was underway, it was foreseeable that his words and deeds would escalate the violence. He bears blame for the attack on the Capitol.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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