Republican Senators’ Short-Sighted Justifications for Acquitting Trump

Over the next few days, Republican Senators will make statements explaining their reasons for acquitting President Trump. When they do, many will decide on essentially one of two options. They can acquit the president claiming they believe what he did was wrong but not impeachable. Or they can acquit claiming they believe there’s insufficient evidence to prove the allegations against the president.

In effect, they can publicly justify their vote by framing it as a legally deficient case or as a factually deficient one. Either way, both paths raise problems for the White House. The first comes with the serious cost of running afoul of constitutional principles and setting a dangerous precedent for abuses of power by this and future presidents.

We anticipate significant costs for the White House and Senate Republicans with the second approach: it makes them more vulnerable when future revelations come to light about the president’s scheme with Ukraine to cheat in the 2020 election. An acquittal on the basis of a rejection of the House Managers’ facts provides incentives for media outlets to continue to investigate this space, for the House to continue to oversee the matter after the Senate votes, and for political opponents competing for these Senate seats to continue to press the issue.

Option One: Claim that allegations against Trump are proven, but his conduct is not impeachable.

The first path–most prominently adopted by Sen. Lamar Alexander (R-TN)–concludes that the president is guilty on the facts: President Trump withheld military aid in exchange for an investigation into a political rival. The House Manager’s case, in that important respect, is proven.

But, to Sen. Alexander and others, such proof is not enough. “I think it was wrong,” Sen. Alexander said on Meet the Press, but “what [President Trump] did is a long way from treason, bribery, high crimes, and misdemeanors.” In other words, the President is guilty as charged on the facts, but not on the law.

Many commentators rightfully focus on the effect of this justification casting a negative light on the president. It refutes a whole line of argumentation put forward by the president and his defense team. Indeed, President Trump’s expected exclamation–Exoneration!–will ring hollow given the bipartisan conclusion on the factual record: He did it. And it looks like a majority of the Senate will have agreed.

But the second path will have its own negative consequences.

Option Two: Claim that allegations against Trump are not proven.

This approach, articulated by Sen. Ted Cruz (R-TX) and Sen. John Kennedy (R-LA), rejects the evidence presented by House Managers. Senators Cruz and Kennedy claim that the record, instead, shows the president acted for wholly legitimate purposes unconnected to the 2020 election. A variation on this theme, articulated by Sen. Shelley Moore Capito (R-WV), also rejects the factual conclusions presented by the House Managers, but does so more cautiously on the basis that Rep. Adam Schiff (D-CA.) and his colleagues simply never sufficiently proved their case.

But there are costs to this approach when new information emerges about the Ukraine scheme. Such information will have salience because it contradicts the conclusions reached by these Senators. While Sen. Alexander can proclaim that the case is closed, and that new evidence doesn’t affect his bottom line, it won’t be so easy for Cruz, Kennedy, and others. Damning revelations will bring further ill repute to their decision to shut down the trial without hearing from first-hand witnesses and documents within reach of a subpoena. The emergence of new evidence contradicting the factual findings of this large grouping of Republican Senators will have salience with the media and American public. These Senators will have to explain and re-explain their votes.

Their own words show the vulnerabilities along these lines.

“The President was not asking for an investigation of a political rival,” explained Sen. Kennedy. “He was asking for an investigation of corruption, possible corruption, by the Vice President and his son. And that is a perfectly legitimate thing for a President to do.”

Or, as Sen. Cruz put it, “The President was not only justified but he had a responsibility to…investigate that corruption.” For his part, Sen. John Hoeven (R-ND) said that he decided “the facts are that the President provided the aid to Ukraine and Ukraine did not do an investigation and President Zelensky said he didn’t feel he was pressured, didn’t say that he felt pressured to do one.” Or, as Sen. Kelly Loeffler (R-GA) stated, “I think this impeachment case has been wholly deficient on both articles and not just from a process perspective but from a fact perspective.” Then there’s Sen. Mike Braun of Indiana who said, “I think they knew they were pushing the envelope when it was built upon a circumstantial platform. And I think even if you admit the Bolton information, it probably wouldn’t make a difference.”

In the near future, John Bolton will probably release his book and give a series of interviews. More FOIA disclosures will reveal the internal deliberations and resistance within the administration over the hold on Ukrainian military aid. And more leaks and investigative reporting will follow.

The Cruz-Kennedy approach should be remembered as the position that denied there was sufficient proof or that claimed the president acted fully appropriately. But, as more evidence reveals that their claims were wrong, the more they must explain why they voted to block witnesses and documents while acquitting the president. It will likely come back to haunt those Senators and the president who encouraged this outcome of closing the case while blocking the evidence from seeing the light of day.

Image: WASHINGTON, DC – JANUARY 22: Senate Majority Leader Mitch McConnell (R-KY) arrives at the U.S. Capitol on January 22, 2020 in Washington, DC. The Senate impeachment trial of President Donald Trump, which started Tuesday, resumes today and is expected to last three to five more weeks. (Photo by Drew Angerer/Getty Images)

 

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).

Danielle Schulkin

Fellow at Just Security. JD, New York University School of Law. Prior to entering law school, she worked at the United States Department of Justice on the 2008 Financial Crisis Task Force and at the Geneva Initiative, an Israeli-Palestinian peace process think tank. Follow her on Twitter (@DaniSchulkin).