After he voted to acquit Donald Trump of inciting the Capitol riot, Senate Minority Leader Mitch McConnell (R–Ky.) explained why the former president was guilty. McConnell explained the apparent contradiction by arguing that the Senate does not have the authority to try a former president. But as he conceded, that is "a very close question," and McConnell's rationale for his vote is puzzling in light of what he did after the House voted to impeach Trump a month ago. McConnell's mixed message reflects the predicament of a party that has built its identity around a reckless, unprincipled demagogue whose influence will continue to weigh down Republicans for years to come.
"Former President Trump's actions preceding the riot were a disgraceful dereliction of duty," McConnell said in a Senate floor speech on Saturday after seven of his fellow Republicans joined 50 Democrats in voting to convict. "There is no question that President Trump is practically and morally responsible for provoking the events of that day. The people who stormed this building believed they were acting on the wishes and instructions of their president. And their having that belief was a foreseeable consequence of the growing crescendo of false statements, conspiracy theories, and reckless hyperbole which the defeated president kept shouting into the largest megaphone on planet Earth. The issue is not only the president's intemperate language on January 6th….It was also the entire manufactured atmosphere of looming catastrophe—the increasingly wild myths about a reverse landslide election that was being stolen in some secret coup by our now-president."
McConnell rejected the notion that Trump's rhetoric was typical of the language commonly used by politicians and that it is therefore unreasonable to blame him because some of his supporters took him more literally than he intended. "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," he said. "Sadly, many politicians sometimes make overheated comments or use metaphors that unhinged listeners might take literally. This was different. This was an intensifying crescendo of conspiracy theories, orchestrated by an outgoing president who seemed determined to either overturn the voters' decision or else torch our institutions on the way out."
McConnell also noted that Trump's "unconscionable behavior" continued after the riot started: "Whatever our ex-president claims he thought might happen that day, whatever reaction he says he meant to produce, by that afternoon, he was watching the same live television as the rest of the world. A mob was assaulting the Capitol in his name. These criminals were carrying his banners, hanging his flags, and screaming their loyalty to him. It was obvious that only President Trump could end this. Former aides publicly begged him to do so. Loyal allies frantically called the administration. But the president did not act swiftly. He did not do his job. He didn't take steps so federal law could be faithfully executed, and order restored."
To the contrary, "according to public reports, he watched television happily as the chaos unfolded. He kept pressing his scheme to overturn the election! Even after it was clear to any reasonable observer that Vice President Pence was in danger, even as the mob carrying Trump banners was beating cops and breaching perimeters, the president sent a further tweet attacking his vice president. Predictably and foreseeably under the circumstances, members of the mob seemed to interpret this as further inspiration to lawlessness and violence."
While Trump urged his supporters to "stay peaceful" in a tweet he posted an hour and 45 minutes after the riot began, McConnell noted, "he did not tell the mob to depart until even later"—more than three hours after the protest turned violent. "Even then," McConnell said, "with police officers bleeding and broken glass covering Capitol floors, he kept repeating election lies and praising the criminals."
McConnell's indictment of Trump, which elaborated on his previous criticism of the former president's conspiracy mongering and his role in provoking the riot, could have come straight out of the arguments made by the House managers charged with prosecuting the former president. Why did McConnell nevertheless vote to acquit Trump?
"Former President Trump is constitutionally not eligible for conviction," McConnell said. "There is no doubt this is a very close question. Donald Trump was the president when the House voted, though not when the House chose to deliver the papers. Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion. But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted: the president, vice president, and civil officers. We have no power to convict and disqualify a former officeholder who is now a private citizen."
Since the Senate had a week to try Trump while he was still president, that gloss is misleading. McConnell refused to call the Senate back into session for a trial, and on Saturday he reiterated his view that "the Senate was right not to entertain some light-speed sham process to try to outrun the loss of jurisdiction." McConnell's position, in short, was that a trial in January would have been too soon, while a trial in February was too late. That conundrum only reinforces the argument that precluding the Senate from trying a former president frustrates the goals of accountability and deterrence by leaving Congress with no recourse against a president who commits "high crimes and misdemeanors" toward the end of his term or who resigns after his misconduct comes to light.
McConnell acknowledged that Trump could have been convicted even if his conduct did not qualify as incitement to riot under federal law or exceed the bounds of constitutionally protected speech described by the Supreme Court in the 1969 case Brandenburg v. Ohio, which held that even advocacy of lawbreaking cannot be criminally prosecuted unless it is not only "likely" to result in "imminent lawless action" but also "directed" at that outcome. "By the strict criminal standard, the president's speech probably was not incitement," McConnell said. "However, in the context of impeachment, the Senate might have decided this was acceptable shorthand for the reckless actions that preceded the riot."
Notwithstanding what Trump's lawyers claimed, the observation that his words were protected by the First Amendment was not a compelling argument against holding him responsible for neglecting his duty, abusing his power, and betraying his oath to uphold the Constitution in the context of impeachment. But if Trump were prosecuted or sued for his role in the riot, the First Amendment argument probably would be decisive. McConnell nevertheless held out the vain hope that Trump could still be held accountable in civil or criminal court. "We have a criminal justice system in this country," he said. "We have civil litigation. And former presidents are not immune from being held accountable by either one."
McConnell rightly noted that Trump's misconduct was not limited to what he did on January 6. Trump promoted his fantasy of a stolen election for months, repeatedly telling his followers that allowing Biden to take office would destroy democracy and ruin the republic. What was McConnell doing while Trump did that? Not much.
McConnell, unlike some of his Republican colleagues in Congress, did not acknowledge Biden's victory until December 15, the day after the Electoral College met. While he did not join the Senate and House Republicans who lent credence to Trump's delusion, he did not contradict it either, even though it was clear by mid-November that there was no credible evidence to back it up.
McConnell did finally criticize Trump's "sweeping conspiracy theories" when Congress convened to tally the Electoral College votes on January 6. He noted that "nothing before us proves illegality anywhere near the massive scale…that would have tipped the entire election." Forcefully rejecting other Republican senators' legally groundless objections to Biden's electoral votes, he said "public doubt alone" cannot "justify a radical break" from historical practice "when the doubt itself was incited without evidence."
By this point, McConnell perceived a threat far more serious than his party's loss of a presidential election. "If this election were overturned by mere allegations from the losing side, our democracy would enter a death spiral," he warned. "We would never see the whole nation accept an election again," he added, and "every four years would be a scramble for power at all cost."
McConnell's repudiation of Trump's outlandish election-fraud claims came a bit late, as he soon discovered when he was forced to flee the president's enraged fans. A few days later, he said the "violent criminals who tried to stop Congress from doing our duty" by invading the Capitol on January 6 were "fed lies" and "provoked by the president and other powerful people." That statement jibed with the essence of Trump's impeachment, which McConnell reportedly favored in the hope that it would help the Republican Party separate itself from Trump's personality cult. But by the time the Senate voted on whether to proceed with Trump's trial, McConnell seems to have changed his mind, agreeing with 44 other Republicans that the Senate no longer had jurisdiction over Trump, the position he reiterated on Saturday. (After hearing the arguments on both sides of the issue, two of those senators—North Carolina's Richard Burr and Louisiana's Bill Cassidy—decided the Senate had jurisdiction after all and voted to convict Trump.)
Why did McConnell wait so long before acknowledging reality and rejecting Trump's baseless allegations? "I defended the president's right to bring any complaints to our legal system," he said on Saturday. "The legal system spoke. The Electoral College spoke. As I stood up and said clearly at the time, the election was settled."
That excuse is hard to swallow. Trump was asserting that he actually won by a landslide immediately after the election, based on nothing more than the typical ups and downs of election night vote tallies. His lawsuits never even alleged anything like the massive criminal conspiracy that he and his allies described in speeches, press conferences, tweets, and TV interviews. The legal complaints the campaign did raise were almost uniformly rejected by the courts. That pattern was obvious long before McConnell admitted that Trump had lost.
By November 20, the day after the Trump campaign's lawyers held a bizarre press conference at which they laid out a convoluted conspiracy theory that would eventually lead to defamation suits seeking billions of dollars in damages, Rep. Liz Cheney (R–Wyo.), the third-ranking Republican in the House, was emphasizing the lack of evidence to support the president's outlandish charges. "The president and his lawyers have made claims of criminality and widespread fraud, which they allege could impact election results," Cheney said. "If they have genuine evidence of this, they are obligated to present it immediately in court and to the American people."
McConnell did not implicitly express similar doubts until mid-December and did not make them explicit until the day of the Capitol riot. Nor did he say anything about Trump's determination to overturn the election results through extralegal means by pressuring state officials and stirring his supporters against them, which predictably led to threats of violence that Trump blithely ignored.
"Mr. President," a Republican election official in Georgia pleaded on December 1, "stop inspiring people to commit potential acts of violence. Someone's going to get hurt. Someone's going to get shot. Someone's going to get killed." That was two weeks before McConnell conceded that Biden had won the election and more than a month before he publicly criticized Trump's allegations, belatedly acknowledging the danger they posed to democracy, public order, and the peaceful transition of power.
Cheney joined nine other House Republicans in voting to impeach Trump, saying "there has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution." McConnell ultimately decided Congress had no remedy for that betrayal. Seven of his Republican colleagues disagreed, 10 short of the number required for conviction but still an unprecedented endorsement of an impeachment by members of the president's own party.
McConnell's compromise seems to be aimed at appeasing the majority of Americans who supported Trump's impeachment without alienating the majority of Republicans who did not. According to a Monmouth University poll conducted in late January, 56 percent of Americans thought Trump should have been impeached, while 42 percent disagreed. A smaller majority, 52 percent, favored conviction, which 44 percent opposed.
The partisan breakdown was predictable: Only 13 percent of Republicans supported impeachment, compared to 92 percent of Democrats, and just 11 percent of Republicans favored conviction, compared to 87 percent of Democrats. Most independents (52 percent) supported impeaching Trump, but a plurality (48 percent) opposed convicting him.
The poll also found that most Republicans (72 percent) still believed Biden won the election "due to voter fraud." On a slightly more encouraging note, just 36 percent of Republicans thought Trump "did nothing wrong" on January 6, while 53 percent thought "some of Trump's conduct was improper" but not impeachable and another 10 percent thought it was "definitely grounds for impeachment." In other words, more than three-fifths of Republicans believed there was something amiss in trying to stop Biden from taking office by telling a mob of angry supporters to march on the Capitol.
McConnell evidently concluded that he could safely amplify that unease as long as he did not express it with a vote to convict Trump. But such triangulation does not bode well for the GOP's ability to come up with an agenda that goes beyond blind loyalty to a sore loser whose desperation to maintain power at all costs was obvious long before McConnell decided to decry it.