The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Senator Ted Cruz has been a hardliner on the second impeachment of Donald Trump. He voted for Rand Paul's pre-trial procedural motion to avoid the trial. He was one of a small number of senators to vote against adopting the Senate impeachment resolutions agreed to by the Mitch McConnell and Chuck Schumer. He voted against Senate jurisdiction over the case after the first day of trial.
Many have thought that Republican senators would use the constitutional argument that the Senate does not have jurisdiction over former officers as cover for a vote to acquit Donald Trump at the end of the trial and avoid any significant discussion of the merits of charges against Trump and his responsibility for the events of January 6. In a very interesting new op-ed on the Fox News website, Cruz has defied those expectations.
In that op-ed, Cruz comes to the same conclusion that I do—that the Senate does in fact have constitutional jurisdiction to hold an impeachment trial of a former officer. Interesting. Then he adds that he believes the Senate's jurisdiction over impeachments is discretionary, not mandatory. As he puts it, "nothing in the Constitution makes the Senate's impeachment jurisdiction mandatory." Fascinating.
As it happens, I agree with Cruz on this point as well (more or less). As I wrote before the first Trump impeachment trial, "the Senate is empowered to have a trial, not mandated to have a trial." Cruz does not give much reason for why he thinks that the Senate has discretionary jurisdiction for impeachment trials. He just points to the textual provision giving the Senate "sole power" to try all impeachments, though it is not obvious to me why sole power would necessarily support the analogy he makes to the Supreme Court's discretionary docket (which rests on very different constitutional language and a statutory scheme).
I think this leads Cruz astray in how he thinks about whether Senate trials are discretionary—and with how the Senate should express itself on its desire not to hold a trial. Cruz seems to think of the articles of impeachment as like a cert petition that the Senate can simply reject without explanation at a jurisdictional threshold. But that seems misguided. That would be inconsistent with current Senate rules, which do not suggest a cert-like process. It is also at odds with how the jurisdictional question was put to the Senate after the first day of the impeachment trial, which was whether Donald Trump was subject to the jurisdiction of the court of impeachment notwithstanding the expiration of his term of office. By voting nay on that question, Cruz implied that Trump was outside the scope of the Senate's jurisdiction. If he had carried the day, the current Senate would have been understood to have reversed the Belknap precedent and altered the scope of the Senate's jurisdiction going forward. There would have been real implications for the possibility of holding impeachment trials for former officers in the future. Nothing about that vote suggested "maybe next time."
Cruz's real objection is not to jurisdiction but to the merits of the claim that Trump as president committed impeachable offenses. I think he is quite wrong on that, and Cruz is not entirely clear on why he thinks the House's case falls short. Perhaps in the end Cruz will offer an opinion explaining his vote to acquit that looks something like his former chief of staff Chip Roy's statement on why did not vote for the article of impeachment in the House—the article of impeachment charges a statutory crime, and Trump's actions do not fit the statutory requirements of that crime. That is a defensible view, and further indicates why the House Democrats should have tried to include Republicans like Chip Roy in their planning for the impeachment.
If a majority of the senators thought that the article of impeachment clearly fell short of the constitutional standard of a high crime and misdemeanor and that there was no way that they could be convinced to convict and remove after hearing arguments and evidence, then I believe that they could vote to dismiss the case without proceeding to trial. If the Senate wants to convict, it needs to hold a trial. If the Senate wants to leave the status quo undisturbed, then no trial is necessary to accomplish that result. But that requires that the Senate take a vote that indicates clearly what it is doing and senators should go on record taking responsibility for that action. They should vote on a threshold motion for a summary judgment that the exhibited articles are constitutionally deficient. But that is not a question that McConnell and Schumer agreed to put before the Senate, and Trump's legal team did not make such a motion themselves.
Cruz has made an interesting political and constitutional move by staking out this particular position. I think it is mostly defensible. But he has unfortunately and inappropriately muddied the waters by trying to pack a substantive objection into a jurisdictional vote. Cruz is acting as if the Senate was asked a question that it was not in fact ever asked. I welcome him to the correct side of the "late impeachment" question, but I wish he had done so earlier and more clearly.