Ted Cruz on Impeachment Trials of Former Officers

He gets to the right answer, but botched the execution.


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.

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  1. I don’t care anymore. The Democrats want a show trial. That’s all I need to know.

    1. Maybe a little less posting and a little more watching the trial would do you some good.

      Pull your partisan head out of your giant partisan asshole.

      1. Partisan RALKer right here.

      2. That would be some great advice to give to Pelosi when she threw a temper tantrum and pushed articles of impeachment through the House with little thought or debate.

  2. Taking Cruz’ statements about the legalities seriously is a fundamental mistake.

    1. Cruz’s goal here appears to be this: paving the way for Republicans to insist upon impeachment trials of former officials, later on when the Republicans control Congress. Indeed, there’s something to be said for fighting fire with fire. Unfortunately, all of this fire has a tendency to burn the Constitution, which Cruz (and Schumer) have taken an oath to protect. Cruz’s argument that “shall” really means “may” is incendiary legal nonsense.

  3. The assumption of this post is that, as in the case of a criminal trial, if there is a variance from the charging instrument, the trier must (or should) aquit. Curious if you believe that is the case.

  4. After today the Rs can’t say that there was no evidence against Trump, or that he did not incite the rioters. The House Managers laid out plenty of evidence and made a strong argument. The only reason that the Rs could use not to convict now is “We don’t wanna.”

    1. They used a spliced up video as “evidence” and a few affidavits from people who are now facing criminal charges and would like very much to cut a deal. Far from a convincing case. In fact, it was mostly a joke. If this wasn’t so sad I would have laughed most of the afternoon.

      1. I actually cringed — they are tossing lit matches into the tinder-dry underbrush.

        Bad things tend to happen when that is done…

        1. Sure thing, Chicken Little.

          What, precisely, is your MOS in the Keyboard Army?

          1. Damn if that doesn’t take me back a bunch of years!

            81-B, Combat Draftsman (if you can imagine such a thing)

            1. Agree, asking for MOS is really old school.

              For the record 11-B40. Eleven Bravo is combat infantryman and 40 is highest weapons qualifications.

              1. Even older school: My AFSC was 461xx
                USAF doesn’t use AFSCs any more.

        2. Yeah it is pretty bad. I don’t think these idiots understand what they are doing…

          1. Worry not – your mommy won’t let you participate.

            If you people bothered paying attention to reality as much as you harp about the imaginary civil war you pretend is coming, maybe you wouldn’t be so ignorant.

            1. What do you think happened on January 6th?

              That was many things, but imaginary wasn’t one of them.

              1. If that’s your ‘Civil War’ prelude, then I think that you exposed yourselves as weak-willed, incompetent sheep.

                I also think that since you helpfully brought notice to yourselves, that if there is a next time, the police will put you down like rabid animals.

                Please do speak more about your plans for insurrection and rebellion. It’s always fun to laugh about people planning or threatening to do that in the name of the Constitution. Just more evidence that you’ve never paid attention to its contents.

                America will not fall to the likes of you.

                1. It’s still possible some Trump supporter carries out a horrible murderous act. If this happens, here’s a prediction: Some commenters here won’t be able to completely hide their pride in the carnage.

              2. I thought it was just some frat boy hijinks, and therefore not grounds for impeachment?

                1. was there some dude named “Squee” there?

          2. You’d better not tell the truth about the violence, or there will be violence!

            Jimmy and Ed are ridiculous.

  5. It is really truly a sad day when Ted Cruz looks like the grown up in the room. Instead of acting like offended children the Senate should have simply did their job and dismissed the articles of impeachment. This farce is making us the laughing stock of the world and every banana republic out there is having a fine time lecturing us about well being a banana republic. Awesome…..

    1. Ted Cruz is a real man . . . If your idea of a real man is someone who responds to a claim that his wife is hideously ugly by figuratively and incessantly licking the scrotum of the guy who repeatedly and publicly called her a pig.

      1. I doubt Ted Cruz licks scrotums…..

    2. They should’ve found a Supreme Court justice to preside over the trial. That would be less offensive than having the trial judge who is also a juror. The Senate probably decided against that because all 9 justices believe the trial is unconstitutional.

      1. Brophy : The Senate probably decided against that because all 9 justices believe the trial is unconstitutional.

        Every previous impeachment of someone not the acting president was carried out the exact same way. Is it possible you didn’t know that ?!?

        1. So if the shit eating dems time the impeachment for after a prez leaves office they get to pick a hack pol to preside. Not to mention a hack pol like Leahy who makes a stupid ruling that the shit eating dem prosecutors can get caught lying about what Lee said and then gets slapped down by Schumer when Lee points out the dems are lying about what he said.

          When even Schumer makes the shit eating dems back track you know things are going poorly for them.

  6. Precedent is a marvelous thing, but changing it ought be approached with caution. Precedent now allows trials for former elected persons and also private citizens.

    1. So you missed the proof of that historical precedent already existing, and think that precedent began in 2021?

      You people need to pay attention.

    2. There is no precedent for trails for someone who was not a federal official.

  7. By Cruz’s logic the Senate never has to do anything at all. On any issue. They can just get sworn in and go home for six years. As a result the federal government would not be able to function. Which of course is not a reasonable interpretation of the Constitution.

    1. Well, was he wrong not that?

      The way Mitch McConnell has acted over the past several years is pretty much that. The Senate does absolutely nothing except what pleases him or what he is absolutely forced to do.

      Tax cuts for the upper 1%, reactionary right wing judges. That pleases him and his donor class. At the same time, upwards of 400 bills had been passed by the House, sometimes with large bipartisan support, just to die on Mitch’s desk. That’s why they call him the gravedigger of the Senate.

      It is amazing the government managed to function at all with Trump and Mitch in charge.

      Anyway, you can see Cruz’s point. The Senate doesn’t have to do anything, and there is nothing anyone can do about it short of vote them out next election.

    2. They do have to stay in session while the house is in session. But I can’t find any other obligations, other than “The Senate shall have the sole Power to try all Impeachments.” Which of course means no more than delivering a summary judgment.

      They don’t have to pass any laws, they don’t have to provide advise and consent it they don’t choose to. Other than attending fundraisers, I don’t see anything mandatory.

      1. Exactly. Fortunately until the McConnell era the Senate acted like responsible adults and helped govern. Under Schumer those days have returned.

    3. I forget who made this argument the other day, but I don’t want to claim credit for it myself. The odd thing is that in the US there’s this strange idea that only bipartisan government is really legitimate. Everywhere else in the world the opposition, well, opposes. The default position is that the opposition will vote against the government. That’s what they do unless they think that will annoy their (potential) voters, or the government makes it worth their while.

      If I was McConnell, my starting point would be that the Republicans in the Senate vote against everything, up to and including the Federal budget and the debt ceiling, unless the White House makes it worth their while to abstain or vote in favour. That’s what being in the opposition means.

      1. No, it’s what’s being juvenile and irresponsible means. Fortunately it was rarely, if ever, tried until Gingrich set the current pattern in 1997.

        1. That’s quite an indictment of the common practice of democracies all over the world. It is the government’s job to govern, and it’s the opposition’s job to put forward an alternative.

          1. Other democracies around the world have parliamentary systems which are different. Moreover, that just is not how the American system has worked, regardless of other countries around the world. I am not sure if other democracies have protections for the minority party similar to the filibuster that can very nearly grind everything to a halt without some bipartisanship.

            Granted, the filibuster can be got rid of, but, again, your point was that in every other country the minority party tends to oppose everything, even passing a budget and the obvious rejoinder is that this is not how the American system was set up nor how it has operated in practice…well, at least until Gingrich and much more obviously during Obama’s presidency when the stated goal was to make him a one-term President rather than do what’s best for the country.

            And for what it’s worth, if it is really true that the common practice of democracies all over the world is to literally try to sabotage the operation of the government because the opposition doesn’t have control, that seems an incredibly bad way to run a country. So bad, that I can’t imagine that actually is how other countries operate.

            1. Sometimes the opposition votes with the government simply because the government is doing something that’s incredibly popular. Nobody is going to vote against the Free Cookies For Everybody Act.

              As for what this would look like in the US: You’ve just seen a version in the US Senate, when McConnell did a deal with Schumer to figure out how to deal with that 50/50 split. If you want someone to vote for your bills, you have to give them something in return.

          2. To mirror Nova Lawyer,

            The parliamentary system makes things like coalitions more fluid. The opposition doesn’t always represent around 50% of the legislature like it does in the American system. Negotiation with McConnell would start with the assumption that zero members of his 50% voting power will stray–and with a few notable exceptions, that’s been true since he became Majority Leader.

  8. “Cruz is acting as if the Senate was asked a question that it was not in fact ever asked.”

    I wouldn’t expect such a naive mistake from a constitutional law professor, as the greatest diliberational body in in the country, the Senate is of course not limited to questions asked or not asked, and the constitution is clear on that fact:
    “The Senate shall have the sole Power to try all Impeachments.”

    That clearly alows dismissal at an early stage, a full trial, or anything in between. Trying to limit the Senate to only questions it’s been asked is absurd as trying to limit the House to only impeaching on “high crimes and misdemeanors”.

  9. Not sure what the controversy here is.

    The Constitution says, “The Senate shall have the sole Power to try all Impeachments,” not “The Senate shall try all Impeachments.”

  10. “Cruz’s real objection is not to jurisdiction but to the merits of the claim that Trump as president committed impeachable offenses. ”

    Well, the real superpower of an attorney is to morph a merits question into a procedural question.

    “That would be inconsistent with current Senate rules, which do not suggest a cert-like process. ”

    The Senate can change its own rules with a simple majority. The Senate’s affinity for precedent has been eroding in recent years. If one side nukes the filibuster and packs the courts, I expect most Senate precedents to soon follow.

    1. Kinda like how the pubs nuked the filibuster on judges after the shit eating dems did a like nuke the last time around over the objection of the pubs who said if you do that it will jump up and bite you in the ass.

  11. Question for those who think Trump should be acquitted. Suppose Trump is an older son, and the mob is the little brother who claims they got into mischief because their big brother put them up to it. Big Brother, with an innocent look, says, But I didn’t actually tell them to do it. How many parents here would let big brother off the hook entirely if his words could plausibly be interpreted as an invitation for little brother to get into mischief? And if I’m right that nobody would, then shouldn’t POTUS be held to at least as high a standard?

    1. Great idea; lets just get rid of all laws and ignore the constitution. It sure would make things easier to get what you want.

      1. Now that’s a non-responsive answer if I ever heard one.

    2. For the Republicans, this isn’t about what “should” happen regarding Trump. This is about what needs to happen to preserve their chances of re-election among a constituency that is largely detached from facts and thinks Trump is literally a hand-picked agent of their God.

      While I love the legal analysis here, this particular issue is probably better understood from a psychological perspective than a legal one. The trial may be “legal” in format, but a significant number of jurors have a vested interest in finding the accused (and guilty) Trump innocent.

  12. The Supreme Court has commented more than a couple times that the word “jurisdiction” is overused. Cruz’s confusion is just another example. I could imagine a few distinct procedures leading to early dismissal:
    * Dismissal for lack of jurisdiction. E.g., the House purports to impeach and levy a fine against ACORN for abetting voter fraud (or whatever it was). Should be dismissed because only natural persons are amenable to impeachment and a monetary fine is not a permissible penalty for impeachment under the Constitution.
    * Dismissal on the pleadings. E.g., the House impeaches Joe Biden for an unpaid parking ticket. Should be dismissed if the Senate determines, as a matter of law, that unpaid parking tickets are not high crimes and misdemeanors. This might be what Chip Roy was getting at — the impeachment charges a crime but the adduced facts don’t constitute that crime, so the bill of impeachment should be dismissed as a matter of law. This also seems like the right category if you believe that the First Amendment is a defense to impeachment and the charged conduct is, on its face, protected by the First Amendment.
    * Dismissal in the nature of summary judgment or a directed verdict. E.g., the House impeaches a judge for taking bribes, but after the House presents its evidence a majority of the Senate finds the evidence so weak as to not merit further proceedings.

    There might be a fourth category that is hinted at here. Something like a dismissal “in the interests of justice.” E.g., the House impeaches a doddering old judge for drunkenness on the bench. The judge resigns and a majority of the Senate believes that impeachment would serve no practical purpose because the judge will never again hold office. It might then be appropriate for the Senate to dismiss, even if the House wishes to pursue the trial. I think this is what Cruz is getting at, although it’s certainly not “jurisdiction” and also not the right answer in the case of egregious behavior by a one-term president with continuing political aspirations.

    Interestingly, there’s a similar dispute simmering on the Supreme Court about whether its original docket is mandatory. There, it’s the most conservative justices (Thomas and Alito) who believe jurisdiction cannot be declined.

    1. * Dismissal in the nature of summary judgment or a directed verdict. E.g., the House impeaches a judge for taking bribes, but after the House presents its evidence a majority of the Senate finds the evidence so weak as to not merit further proceedings.

      I don’t disagree with your overall point or your specifics, except that we would normally call this an “acquittal,” not a “dismissal,” no?

  13. Probably so. I practice >99.9% on the civil side so wouldn’t know.

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