Daily Times

Is it over? Donald Trump’s second impeachment trial ended well short of the necessary 2/3 of senators present voting to convict the ex-president of “high crimes and misdemeanours.” Trump was acquitted of inciting an insurrection to disrupt the federal government and illegally reverse an election he lost by seven million votes.

The magnitude of the impeachment charge was so striking that many could not fully assimilate its meaning and consequence. Trump used a series of lies and falsehoods ultimately to assemble a mob to storm Congress on January 6th (1/6) preventing it from carrying out the constitutional responsibilities to certify the Electoral College vote making Joe Biden the nation’s 46th president.

To a reasonable observer, the evidence and proof of guilt were overwhelming. Yet, only seven Republicans had the courage to vote to convict risking the consequences from a vengeful ex-president and the Republican Party he controls including being primaried and censured.

The losers were the American public and the Constitution. Abroad, this nation was on trial. And it lost.

Why? In almost all international polls, Donald Trump was viewed with disdain and even ridicule. In Europe, Russian President Vladimir Putin and China’s Xi Jingping are far more highly regarded than Trump. The spectacle of acquittal in the face of the evidence will only widen these perceptual gaps. How does America overcome the sight of a mob overrunning its Capitol Building, threatening to hang the vice president, provoked by Trump?

It does not. That image will be burnt into many minds as the collapse of New York’s Twin Trade Towers on September 11th, 2001 was. This 1/6 image will be permanently used against the United States by rivals, competitors and enemies.

Second, Minority Leader Mitch McConnell’s closing statement raised a most serious cause for concern. McConnell’s assessment of Trump’s role in inciting insurrection could not have been more damning. Indeed, it may have been stronger than any condemnation offered by the House Impeachment Managers during the trial.

The Leader’s fatal flaw was citing a very weak and highly debatable jurisdictional proposition that the Constitution does not give authority to impeach a former official, of which a large majority of legal scholars and others strongly dissent, to justify his not guilty vote

In fairness, McConnell’s decision to acquit may have reflected his calculation that he could not attract the necessary seventeen votes in his caucus to convict the ex-president. Importantly, he believed that a guilty verdict could establish a bad precedent for a nation divided almost 50/50 on every issue, in punishing future former elected officers. Herein rests the problem.

The Leader’s fatal flaw was citing a very weak and highly debatable jurisdictional proposition that the Constitution does not give authority to impeach a former official, of which a large majority of legal scholars and others strongly dissent, to justify his not guilty vote.

This was the parachute that 42 of his colleagues deployed in acquitting Trump. But the Senate had earlier voted 55-45 that impeaching a former president was indeed constitutional. In one sense, by ignoring or disregarding the Senate vote, did McConnell create an even worse precedent of selective nullification? Does this mean that nullification of Federal law, one cause of the Civil War, has been resurrected? And how far might nullification go?

Suppose, for example, at the Nuremberg War Crimes Tribunal trying former Nazis after that war, one of the justices employed the leader’s argument. After broadly condemning the behaviour of the alleged criminals, the judge voted to acquit on the grounds that the Tribunal lacked the jurisdiction to try the case. Instead, this was victors exercising vengeance over losers. Of course, that did not and would not happen. The outrage would have been massive and the judge probably removed.

While Donald Trump certainly did not commit war crimes, no other president in history including Richard Nixon, mounted such a direct assault on the Constitution. And still Trump was acquitted. Of course, civil or criminal proceedings could follow.

In Shakespeare’s Henry II, Henry complained about his chief prelate by =asking, “Will no one rid me of this turbulent priest?” In 1170, Thomas a’Becket, the prelate who was Henry’s target, was murdered. That was no accident. In essence, Trump was Henry but with plausible deniability.

The tragedy goes beyond the precedence of impeaching future officers and possible nullification. By their vote, Republican senators showed greater loyalty to Trump than to the Constitution. All will bristle at that accusation. But let each then answer three questions.

First, if the vote were secret, how would it have ended? Second, would any smoking gun directly linking the president with the insurrection such as emails, tweets or phone conversations that were unequivocal such as “takeover the Capitol and prevent the certifying vote from taking place” made a difference in the vote? Third, suppose Trump were a Democrat?

Those answers will explain why America lost.

Dr Harlan Ullman is Chairman of two private companies; senior adviser at the Atlantic Council; and Distinguished Senior Fellow and Visiting Professor at the US Naval War College in Newport Rhode Island. He can be reached @harlankullman on Twitter