Trump's acquittal is not foreordained

The second impeachment trial of former President Donald Trump is shaping up to be a bit of an anti-climax. Once Tuesday's jurisdictional vote was held, determining whether you could try someone who had already left office, and only decided 56-44 in favor of proceeding, the consensus quickly congealed that conviction was impossible. How could enough Republican senators vote to convict someone who they believed they had no authority to try?

As a consequence, Republicans, Democrats and non-partisan observers alike are behaving as if acquittal is foreordained. The goal is to get the trial over with as quickly as possible and to get everybody on the record as doing precisely what we all know they are going to do, rather than to establish guilt as thoroughly and unequivocally as possible.

But I think that assumption is mistaken. Because the questions are separate, it is entirely sensible to vote nay on the jurisdictional question, and yet yea on the substance. It's worth articulating why that is so before allowing the assumption itself to become a form of political cover for those who would prefer not to face their obligations in the trial.

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In ruling on the jurisdictional question, the Senate has settled the matter from the perspective of precedent. Can presidents and other officials be tried after they have left office? Yes — one is being tried right now, because a majority of senators said he could be. That's how the law is made in the Senate: by voting. A future Senate could vote otherwise, and establish a new precedent, but a partisan minority cannot un-cross the Rubicon. On the contrary, it seems very likely that, having been set, the precedent will be repeated in different partisan contexts regardless of whether Trump is convicted or acquitted of the current charges.

Nor is it absurd from a principled perspective to vote to convict when one did not believe one had the jurisdiction to try the case in the first place. There are any number of analogous circumstances where one is obliged to recognize a power, and an obligation, that one would prefer to reject. A lower court, for example, is obliged to apply Supreme Court precedent even if it disagrees with that precedent. A senator who voted against a treaty that is nonetheless ratified must treat that document as the law of the land — and evaluate future decisions in light of that existing obligation — lest other powers come to see America's promises as worth no more than a shifting Senate majority. To call something law is to say that it governs whether you agree with it or not, provided it is properly enacted. That is precisely what the Senate did in voting on the jurisdictional question.

In perfectly good conscience, then, any senators who believe that you cannot try a former president, but that Trump is in fact guilty of the charges, can conclude that the jurisdictional question has been resolved in legal fashion, and that they now have the obligation to try the case on the merits. Indeed, they can do nothing else — because their vote can be understood as nothing else.

Are there no other justifications for refusing to convict if one believes that Trump is guilty? There certainly is precedent for doing so — for nullification rather than declaring innocence. The question is whether the precedent applies in this case.

In 1999, when President Bill Clinton was being tried for perjury and obstruction of justice, a great many people — Democrats and Republicans alike — took the view that, while he was guilty, he should not have been impeached, and should not be convicted. Indeed, it's entirely possible that, if every senator who believed that he was guilty as charged had voted to convict, he would have been removed from office.

It is tempting to say that the only reason he was not convicted was some combination of partisanship and political cowardice, but in fact there was a principled case for what amounted to nullification. That case didn't rest on the unjust nature of the law in question — I don't think anyone voted to acquit because perjury should not be considered a crime — but on the grounds that the impeachment and, indeed, the crime itself were a consequence of abuse of prosecutorial discretion that needed to be rebuked.

That's a position that, I think, a lot of Republicans would like to make in the current trial — it's what they imply by saying that the impeachment is "partisan" and "divisive." But it's important to recognize what that case actually requires. It's not enough to say, "this impeachment will polarize the country," because even if that is true a partisan acquittal will only compound that situation. Nor is it enough to wish that different offenses were also prosecuted against the other party — that's not principled nullification but mere favoritism. Nullification requires that the charges be unjust, either in and of themselves (because the crime committed ought not to be illegal) or due to the particular extenuations of the context at hand. I am at a loss to think what the extenuating context might be in this case, where the president's actions were affirmative, deliberate, and unprovoked, undertaken over the course of months, and with a clear and expressed purpose. The only question is whether those actions and that purpose were impeachable.

So Republican senators really should feel both able and obliged to vote their consciences — and should be understood as doing so. Even if, in good conscience, they have reservations about the wisdom of the prosecution or convictions that they lack jurisdiction, they should understand their remaining vote to be on the substance. They can still vote to acquit if they believe that what Trump did — not only on Jan. 6th but in the run up thereto, not only in his own words to the crowd but in his pressuring of state officials, and the entire totality of his behavior — did not constitute high crimes and misdemeanors that merit his being barred from office. That, though, is the only question remaining before them.

Of course, it might seem naive to talk about conscience when the political stakes are so high. But it is corrosive to the Republic to indulge in casual cynicism, to assume that everyone votes on the basis of which team they are on, and that the law is just whatever one wishes it were at any moment. I don't think we should encourage the habit. If we want to praise the likes of Sen. Ben Sasse for voting their consciences, we should behave as if all his colleagues are doing the same, and judge their consciences accordingly.

There are 12 sitting Republican senators who voted to convict Clinton in 1999, including the minority leader, Mitch McConnell. Every one of them voted "no" on the jurisdictional question. Their views on that issue are a matter of record. The question now is whether they think Trump's incitement to insurrection (as alleged) rises to the same level of seriousness with which they regarded Clinton's perjury in a sexual harassment case.

I remain open to being surprised by their answer.