By Gary Schmitt
Friday, February 13, 2026
Five years ago today, 43 Senate Republicans voted to
acquit Donald Trump of inciting the January 6 riot in his second impeachment
trial, leaving the Senate short of the two-thirds required to convict. In doing
so, they foreclosed the constitutional penalty that potentially follows
conviction: “disqualification to hold and enjoy any Office of honor, Trust or
Profit under the United States.”
Today, we are living with the consequences of those 43
Republican votes: a president who literally professes to have “the right to do anything I want to do” and who, having
survived two impeachment trials, sees the ultimate constitutional guardrail
against presidential misbehavior as a dead letter. If the first year of Trump’s
second term is any indication of what the future holds, we might look back in
the months ahead and judge the vote to acquit Trump on February 13, 2021, as
the day the Constitution died.
Seven GOP senators—Richard Burr of North Carolina, Bill
Cassidy of Louisiana, Susan Collins of Maine, Lisa Murkowski of Alaska, Mitt
Romney of Utah, Ben Sasse of Nebraska, and Pat Toomey of Pennsylvania—did vote
to convict. The rest put forward reasons for voting to let Trump off the
constitutional hook. Among them: Trump was no longer president and so could not
be “removed” from office; Trump’s speech to thousands at the January 6 “Stop
the Steal” rally represented protected political speech under the First
Amendment; and, finally, the House impeachment process deprived Trump of due
process, having called no witnesses or allowed Trump’s legal team a chance for
rebuttal.
None of these points was completely without merit, but
neither are persuasive as a defense. As scores of constitutional scholars pointed out, the idea that a former
president had to be “in office” to be convicted in an impeachment trial was an
unnecessarily cramped reading of the constitutional text, ran afoul of the
history of British impeachment practices that the drafters of the Constitution
drew on, and—perhaps most importantly—created an illogical situation in which
an impeached president could escape conviction and disqualification for his
misdeeds by simply resigning before a Senate vote. As former President John
Quincy Adams succinctly put
it nearly two decades after he left the White House,
he was “amenable to impeachment … for everything I did during the time I held
any public office.”
As for the argument that the impeachment charge of
inciting the January 6 riot violated Trump’s free speech rights, even if Trump
had been a private citizen he might have still faced a criminal indictment
given how he purposely stoked the crowd into a frenzy, told them to go to the
Capitol, and “fight like hell.” But he was not a private citizen, and as
president, Trump had broader obligations under the Constitution. As Keith
Whittington, the country’s leading expert on the impeachment process, wrote at the time: “the First Amendment does not shrink the scope of
the impeachment power or alter what conduct would fall within the terms of high
[crimes] and misdemeanors.” Indeed, “high crimes and misdemeanors” was meant to capture conduct that is ostensibly legal but which violates
the president’s larger duty to the nation and the constitutional order. Under
this argument, a president could make a speech calling for a repeal of the 13th
Amendment, wear a Nazi swastika on his arm, and don a pointed white hood and
still be immune from impeachment.
No more serious is the charge that Trump was denied due
process. There is no requirement that House impeachments precisely ape the
proceedings of a criminal trial. They could, but it’s certainly not
constitutionally mandated. Indeed, if anything, impeachments are more akin to
grand jury deliberations where the government, in a one-sided process, needs to
convince the members of the jury only that there is sufficient evidence
(“probable cause”) that a law has been broken. It was absurd to think that Trump’s
behavior on January 6—which the whole nation witnessed on TV and members saw
first-hand as they scrambled for their lives—was somehow insufficient to move
the House to vote on an article of impeachment. As for the Senate trial,
Trump’s defense team was given all the time it wanted to rebut the charge of
incitement and could have, but didn’t call its own witnesses.
Undoubtedly, some Republicans took these reasons for
acquittal seriously. However, the idea that all, or even half, did seems
improbable. Senior Republicans like then-House Minority Leader Kevin McCarthy and Sen. Lindsey Graham knew Trump was responsible for what happened that day.
Nevertheless, they, and others, rapidly gave him a pass out of fear of a
backlash from Trump’s political base. Best to hide behind constitutional
arguments to save face, avoid retribution from the president’s supporters, and
preserve their own positions and ambitions.
Not that Democrats were pure of heart. Having won in
November, Joe Biden and his team made it perfectly clear that they wanted to
get the impeachment and subsequent trial over as soon as possible to get on
with their own policy agenda, nixing in the process any deeper dive into
Trump’s culpability.
If there were any hope of 10 more Republican senators
having the backbone to convict Trump, it would turn on the decision of Senate
Minority Leader Mitch McConnell to acquit or not. McConnell made clear at the time that what the president had done was
definitely worthy of impeachment. “There is no question—none—that President
Trump is practically and morally responsible for provoking the events of the
day,” he opined. “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.” Nevertheless, despite being
admittedly uncertain about the question of whether a former president could be
impeached, he came down on the side of saying “no.”
What appeared to push him to adopt the argument was less
its persuasiveness than its political convenience. With Trump’s loss in the
general election and the events of January 6, McConnell assumed that Trump was
finished politically. But what the senator also believed was that Trump’s
voters were still a significant factor within the GOP and that they would be
needed to take back the Senate in two years—and, by the way, return him to the
position of Senate majority leader. None of that he thought would be possible
if Republican senators angered what became the MAGA base.
As McConnell told his biographer Michael Tackett, “Where I differed with Liz
[Cheney] is I didn’t see how blowing yourself up and taking yourself off the
playing field was helpful to getting the party back to where she and I probably
both think it ought to be. … I think her sort of self-sacrificial act maybe
sells books but it isn’t going to have an impact changing the party. That’s
where we differed.”
Just how wrong could one be? Trump wasn’t dead
politically. If members of Congress were so afraid of the Republican base’s
Trump attachment, why wouldn’t Trump take advantage of it if he could still run
for office? Indeed, was it even possible to transform a party with Trump still
alive and kicking politically? Nor did the GOP retake the Senate in 2022,
losing in Georgia, Pennsylvania, and Arizona with Trump-aligned candidates. If
McConnell had acted otherwise, it is not unreasonable to suggest that he could
have provided the necessary safe harbor for other senators to follow his lead.
It’s true, of course, that McConnell would have likely
lost his leadership position—just as Cheney did in the House—had he voted to
convict Trump. On the other hand, he would have gained the lasting honor of
doing the right thing by the Constitution and perhaps reminded us of why the
Senate was intended to be “the upper chamber.” Instead, when asked just a few
days later if he would support Trump if he captured the Republican nomination
again, he answered, “absolutely.”
Can there be any doubt that having survived his second
impeachment and gotten away with fueling a massed attack on another branch of
government in effort to overturn a fair and free election that Trump would,
once reelected, enter office believing there were no effective institutional
roadblocks to prevent him from doing whatever he wanted? Limited government in
America is defined less by the specific powers found in the Constitution than
the willingness of the branches to check each other. Impeachment is an extreme
check on official misbehavior—-but a necessary one given the unique role and
powerful authorities vested in the presidency.
Senate Republicans continually grumble in private about
this or that Trump provocation. However, they have only themselves to blame for
allowing Trump to resurrect himself, for then confirming a Cabinet largely
filled with “yes” men and women, and further reducing Congress from being the
first branch of government to a governing afterthought.
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