Reading Between the Votes: 53 Senators Say Trump Guilty on the Facts

With Rep. Justin Amash’s (I-Mich.) vote in the House and Sen. Mitt Romney’s (R-Utah) vote to convict in the Senate, the historic impeachment of President Donald Trump ended with a bipartisan tenor. But there’s an even broader bipartisan “vote” underlying the final Senate vote. It should not be missed or underestimated. A bipartisan majority of senators — including at least six Republicans – concluded that the House Managers proved their central case and that what the president did was wrong. As a result, Trump’s claim of “Exoneration!” should ring hollow.

Remember this: A bipartisan majority found that the factual allegations for Trump’s impeachment were proven. That includes: Senators Lamar Alexander, Susan Collins, Lisa Murkowski, Rob Portman, Mitt Romney, and Ben Sasse.

We collected the statements of the six Republican senators in the chart below. Contact us if we are missing anything or anyone (e.g., if you think Sen. Marco Rubio (R-Fl.) or others should be added).

But what about the fact that a majority of the Senate voted to acquit? Is that not a “win” for Senate Majority Leader Mitch McConnell (R-Ky.) as so many commentators will say? There is good reason to see it otherwise. As I commented before the Senate trial began, McConnell faced a no-win situation. If the Senate held a fair trial, it would be devastating for Trump. If the Senate held a sham trial, it would mean that the acquittal would be best understood as illegitimate, and no rightful claim could be made for “exoneration.”

Since then, McConnell’s backroom coordination with the White House throughout the trial has been revealed. The Wall Street Journal reported on Jan. 31:

Senate Majority Leader Mitch McConnell (R. Ky.), aided by White House liaisons, exercised a behind-the-scenes campaign in the chamber to keep his members from panicking and breaking en masse from Mr. Trump. Mr. McConnell’s office even advised the president’s legal team throughout the process on which arguments were important to be made on the floor to resonate with certain undecided senators.

If this were a regular courtroom, it would be deemed a mistrial and the verdict void.

But the more important point is the overwhelming evidence presented showed that President Trump did it: He wrongfully conditioned military assistance to Ukraine on a commitment to announce an investigation into Joe Biden. He was guilty as charged according to a clear bipartisan majority of the Senate. Yes, a majority did not support invoking the penalty of conviction and automatic removal from office, an outcome for which they can claim an immoral victory if they like.

 

Member Statement
 
Lamar Alexander (Tennessee) “I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.”

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens…The question then is not whether the president did it…” (Statement)

”I think he shouldn’t have done it. I think it was wrong. Inappropriate was the way I’d say — improper, crossing the line. And then the only question left is who decides what to do about that . . . I think what he did is a long way from treason, bribery, high crimes, and misdemeanors. I don't think it's the kind of inappropriate action that the framers would expect the Senate to substitute its judgment for the people in picking a president.” (Video Interview)
Rob Portman (Ohio) “I do not believe that additional witnesses are needed.  I have said consistently for the past four months, since the Zelensky transcript was first released, that I believe that some of the president’s actions in this case – including asking a foreign country to investigate a potential political opponent and the delay of aid to Ukraine – were wrong and inappropriate.” (Statement)

“Since first seeing the transcript of the phone call between President Trump and President Zelensky four months ago, I’ve consistently said that the President asking Ukraine for an investigation of Joe Biden was inappropriate and wrong. I’ve also said since then that any actions taken by members of the administration or those outside the administration to try to delay military assistance or a White House meeting pending an investigation by Ukraine were not appropriate, either. But while I don’t condone this behavior, these actions do not rise to the level of removing President Trump from office and taking him off the ballot in a presidential election season that’s already well underway. …In this case, no crime is alleged. …It’s better to let the people decide. Early voting has already started in some states and the Iowa caucuses occurred last night. Armed with all the information, we should let the voters have their say at the ballot box.” (Statement)
Susan Collins (Maine) “The point is, impeachment of a president should be reserved for conduct that poses such a serious threat to our governmental institutions as to warrant the extreme step of immediate removal from office. …It is clear from the July 25, 2019, phone call between President Trump and Ukrainian President Zelensky that the investigation into the Bidens’ activities requested by President Trump was improper and demonstrated very poor judgment. …Regardless, it was wrong for President Trump to mention former Vice President Biden on that phone call, and it was wrong for him to ask a foreign country to investigate a political rival. …While I do not believe that the conviction of a President requires a criminal act, the high bar for removal from office is perhaps even higher when the impeachment is for a difficult-to-define noncriminal act. …I do not believe that the House has met its burden of showing that the President’s conduct – however flawed – warrants the extreme step of immediate removal from office.  Nor does the record support the assertion by the House Managers that the President must not remain in office one moment longer. …this decision is not about whether you like or dislike this President – or agree with or oppose his policies – or approve or disapprove of his conduct in other circumstances.  Rather, it is about whether the charges meet the very high Constitutional standard of ‘Treason, Bribery, or other High Crimes or Misdemeanors.’…It is my judgment that, except when extraordinary circumstances require a different result, we should entrust to the people the most fundamental decision of a democracy, namely, who should lead their country.” (Statement)
Lisa Murkowski (Alaska) “Given the partisan nature of this impeachment from the very beginning and throughout, I have come to the conclusion that there will be no fair trial in the Senate. I don't believe the continuation of this process will change anything.” (Statement)

“The House failed in its responsibilities.  And the Senate should be ashamed by the rank partisanship that has been on display. …The President’s behavior was shameful and wrong.  His personal interests do not take precedence over those of this great nation.  The president has the responsibility to uphold the integrity and honor of the office.  Not just for himself but for all future presidents.  Degrading the office, by actions or even name calling, weakens it for future presidents, and weakens our country. All of this rotted the foundation of the process, and this was why I reached the conclusion that there would be no fair trial.  While the trial was held in the Senate, it was litigated in the court of public opinion. …The response to the President’s behavior is not to disenfranchise nearly 63 million Americans and remove him from the ballot.  The House could have pursued censure, not immediately jumped to the remedy of last resort.  I cannot vote to convict.  The Constitution provides for impeachment, but does not demand it in all instances. …The voters will pronounce a verdict in nine months, and we must trust their judgment. (Statement)
Mitt Romney (Utah) VOTING TO CONVICT. “The historic meaning of the words “high crimes and misdemeanors,” the writings of the Founders and my own reasoned judgement convince me that a president can indeed commit acts against the public trust that are so egregious that while they are not statutory crimes, they would demand removal from office. …The President’s counsel noted that Vice President Biden appeared to have a conflict of interest when he undertook an effort to remove the Ukrainian Prosecutor General. If he knew of the exorbitant compensation his son was receiving from a company actually under investigation, the Vice President should have recused himself. While ignoring a conflict of interest is not a crime, it is surely very wrong. …The defense argues that the Senate should leave the impeachment decision to the voters. While that logic is appealing to our democratic instincts, it is inconsistent with the Constitution’s requirement that the Senate, not the voters, try the president. …The grave question the Constitution tasks senators to answer is whether the President committed an act so extreme and egregious that it rises to the level of a “high crime and misdemeanor.” Yes, he did. The President asked a foreign government to investigate his political rival. The President withheld vital military funds from that government to press it to do so. The President delayed funds for an American ally at war with Russian invaders. The President’s purpose was personal and political. Accordingly, the President is guilty of an appalling abuse of the public trust.” (Statement)
Ben Sasse (Nebraska) “Lamar speaks for lots and lots of us.” (Media interview) “I believe that delaying the aid was inappropriate and wrong and shouldn’t have happened.” (Media interview)

“It’s clear that the president had mixed motives in his decision to temporarily withhold military aid from Ukraine. The line between personal and public was not firmly safeguarded….When the president spoke to Ukraine’s president Zelensky in July 2019, he seems to have believed he was doing something that was simultaneously good for America, and good for himself politically — namely, reinforcing the legitimacy of his 2016 victory…The call with Zelensky was certainly not “perfect,” and the president’s defense was made weaker by staking out that unrepentant position….Moreover, Giuliani’s off-the-books foreign policy-making is unacceptable, and his role in walking the president into this airplane propeller is underappreciated: His Crowdstrike theory was a bonkers attempt not only to validate Trump’s 2016 election, and to flip the media’s narrative of Russian interference, but also to embarrass a possible opponent. One certainty from this episode is that America’s Mayor shouldn’t be any president’s lawyer. It’s time for the president and adults on his team to usher Rudy off the stage — and to ensure that we do not normalize rogue foreign policy conducted by political operatives with murky financial interests….Even if one concedes that John Bolton’s entire testimony would support Adam Schiff’s argument, this doesn’t add to the reality already established: The aid delay was wrong…And importantly, this happened three weeks before the legal deadline. To repeat: The president’s official staff repeatedly prevailed upon him, Ukraine ultimately got the money, and no political investigation was initiated or announced. You don’t remove a president for initially listening to bad advisors but eventually taking counsel from better advisors — which is precisely what happened here….We need to shore up trust. A reckless removal would do the opposite, setting the nation on fire.” (OpEd in the Omaha World-Herald).
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My appreciation to Danielle A. Schulkin (NYU Law ‘20) for research on this project. 

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About the Author(s)

Ryan Goodman

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016). Follow him on Twitter (@rgoodlaw).