Reflections on the Senate’s failure to convict Donald Trump

It was shocking, but not surprising, that the Senate failed to find Donald Trump guilty for inciting the January 6 riot at the U.S. Capitol. The shocking part is that 43 Republican Senators voted No, despite the fact that the House impeachment managers fully proved their case. The unsurprising part is that those 43 Senators let cowardice prevail over their sworn duty to uphold the law.

Senator McConnell typified the lily-livered GOP dodge. He first cast a No vote, but then proclaimed: “There’s no question–none–that President Trump is practically and morally responsible for provoking” the attack. He went on to say that Trump’s supporters launched the attack “because they had been fed wild falsehoods by the most powerful man on Earth, because he was angry he lost an election.” That obviously meant Trump was guilty in McConnell’s mind, but his mind apparently works in mysterious ways. He stuck with his No vote, based on the fiction that a person no longer in office can’t be impeached. He conveniently forgot that it was he who had refused to allow an impeachment trial in the Senate while Trump was still in office.

Idaho’s two Senators also cast No votes, claiming a president cannot be impeached if he is not presently in office. They apparently concluded that Trump had absolutely no legitimate claim to the presidency and, therefore, could not be impeached. In doing so,
Senators Crapo and Risch rejected the language of the U.S. Constitution, which the vast majority of legal scholars have interpreted as allowing Trump’s impeachment. They also ignored the previous 56-44 Senate vote affirming that a former president is subject to impeachment.

I have known both of these lawyer-Senators for decades and thought they understood the law reasonably well. It now appears I was wrong. Impeachment was an easy call but they both got it wrong. Or, their votes could simply have been motivated by a weak-kneed fear of Trump.

Senator McConnell then suggested that Trump might be held to account under criminal statutes. “The Constitution makes perfectly clear that presidential criminal misconduct while in office can be prosecuted after the president has left office.”

McConnell’s statement jogged my memory about a case I handled for Evel Knievel way back in the late 1970s. It was not a criminal case. Rather, it dealt with the issue of civil liability for gathering together a group of potentially unruly people, who then get out of hand. After Knievel fumbled his jump attempt, the assembled crowd grew increasingly agitated. They rioted that evening, destroying the concession stands at the jump site. Several concessionaires sued Evel for the damages caused by the riotous crowd. In the two decisions issued by the Idaho Supreme Court in the case (100 Idaho 883 and 102 Idaho 138), there was no ruling that Evel could be held liable for the damages, but neither was that possibility foreclosed.

One recent article on the Capitol riot speculated that the federal government and private parties, such as the injured police officers, might be able to sue Trump for damages. Another pointed to statutes in the District of Columbia that might provide grounds for seeking recovery of damages. So, even though Trump escaped an impeachment conviction, it is possible he could be held to account for monetary damages through the civil justice system. Certainly some food for thought for an enterprising attorney.

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2 thoughts on “Reflections on the Senate’s failure to convict Donald Trump”

  1. Judge Jones,

    As a life long republican raised on a southeast Idaho farm, I appreciate and share your perspective on this issue–and many more. The Idaho I was born into in 1966 was a place full of sensible, practical, honest, moral, and hard-working men and women who were not afraid to reject dishonesty and corruption, even when it might come at a cost. They knew that there was something precious in the American idea and how we carried that forward in our communities. They aspired to improve themselves and their families so our society could be better after they were gone. They were not perfect, but my growing up years are full of many more good examples than bad.

    My father was the postmaster in our small town, and I recall many April 15ths when men would knock on our door late in the evening and even sometimes the day or days after to ask him to back-postmark their taxes that they had failed to prepare in time for the deadline. I remember that most of these men were his fellow farmers and all of them were friends of our family asking my Dad to compensate for their failure by disregarding federal law and whatever rules my Dad had promised to keep when he took the job. He is a kind and gentle man, and his answers were always kind, gentle, but firm in his resolve to be honest and incorruptible as he told them he could not discount the law, his pledge, or his word (let alone his job and self-respect) for something so significantly less important.

    I have often wondered, since the election of Donald Trump and Idaho’s unwavering support of his presidency, where the resolve and courage my father showed his young son has gone. Certainly, when it comes to former President Trump, Senators Risch and Crapo do not have this resolve, and the vast majority of their republican colleagues lack it as well, as you aptly point out.

    Further, I have watched people I respect and even people I love be willing to stand behind someone whose morals would not pass muster in any ethical, moral, or religious context. I have been stunned by their willingness to embrace political outcomes and power over what I had assumed to be their convictions that rejected such behavior, tactics, and the willingness to promote oneself to the detriment of others.

    President Trump should be convicted of his crimes. It is unconscionable that a sitting president ask a state official to find votes for him, and once upon a time people would have seen and understood why this behavior is illegal. The fact that you, in a state choking on its own Faustian bargain, are willing to point at it and honestly assess and critique it is admirable, refreshing, and welcome to people who find President Trump’s moral turpitude to be a greater danger than President Biden’s political views most of which differ from my own.

    In short (and “short” is a challenge for me, as you can see), thank you for your contribution to this and other conversations. Your experience, legal knowledge, and willingness to stand for principles that you have actually fought for is evident in what you write. I appreciate that the person I saw serve this state over many years (a state that I still think is great, though we may have forgotten what made it so) is the actual person, and not some party shill, political lap dog, or partisan sock-puppet.

    Please keep fighting the fight.

    1. Thanks for your eloquent comments, Darin. You really struck a chord with me. I’m thinking you would be a great opinion blog writer. Your Dad sounds much like mine. My Dad was pretty far to the right, but he could not countenance liars or those who would not honor their word. I vividly remember a cattle buyer from California, Danny Reitman, who backed out of an oral agreement to buy a load of cattle when the price changed. Dad refused to deal with him again and alerted the entire cattle community in the state about Reitman’s backtracking. Dad would have had absolutely no use for a guy like Trump, or those other so-called leaders who lack courage and basic ethical standards. Can’t tell you how much I appreciated your message. Jim

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