This column is almost uniquely suited to this forum: It’s a thought on a topic of general interest that is probably too difficult to express in a sound bite to a lay audience, but that the average reader here will immediately understand.
Early last week, the Senate voted 55-45 that it was constitutional to impeach a sitting president and later to convict him after he was out of office.
Democrats promptly argued that the constitutionality of the impeachment trial had been decided. Even the 45 Republicans who had voted against constitutionality had a duty to respect precedent, Democrats said, and those Republicans should now judge the case on the merits. Some Democrats likened the vote on constitutionality to a pretrial decision on jurisdiction — once a court decides in a pretrial motion that it has jurisdiction, the parties then proceed on the merits. The parties can’t refuse to participate based on the jurisdictional objection.
Late last week, the Senate voted 43-57 to acquit former President Trump in the impeachment trial.
After the acquittal, Senator Mitch McConnell gave a speech in which he said that Trump was “practically and morally responsible” for the storming of the Capitol on January 6, but that McConnell was compelled to vote for acquittal, because, as he had voted (and lost) earlier in the week, the Senate had “no power” to convict Trump.
That’s the windup; here’s the pitch: Both Democrats and Republicans are thinking about this (or at least arguing it publicly) the wrong way.
Suppose you’re a Supreme Court justice, and you dissent in a case. You think the Supreme Court has decided the case incorrectly, and you express that opinion.
A later case comes up in which the same basic issue is in play. What do you do now — follow the existing precedent (with which you have said you disagreed) or dissent again (to express your disagreement, even though the law is now decided against you)?
There are at least two ways to think about this. The first is the position taken by Justices Brennan and Marshall, who famously dissented in every death penalty case that came before the Supreme Court. Those justices didn’t care that the Supreme Court had ruled the death penalty constitutional, and those justices didn’t think that they were compelled to follow precedent. They “relentlessly dissented.”
But other justices operate differently (although on issues less morally demanding than the death penalty). Justice Harlan, for example, would say that he was offering “temporary allegiance” to the precedent with which he disagreed: Harlan expressed in the first case that he disagreed with the Court’s position; after that, he would temporarily respect precedent and decide the new case on the merits, because he thought that stare decisis required this.
Isn’t this the correct way to view the constitutionality of the impeachment trial? The Senate decided that the trial was constitutional. After that, McConnell had a choice: Would he respect precedent and decide the case on the merits, or would he “relentlessly dissent”?
I’m not going to decide this question here; I’m simply noting that this was a choice. For McConnell to say that he was compelled to acquit because the trial was unconstitutional is simply not true. McConnell had the choice either (1) to respect the Senate’s recently decided precedent and reach the merits or (2) to relentlessly dissent. But there’s no compulsion to choose one or the other of those paths. McConnell voluntarily chose to relentlessly dissent, and thus voluntarily chose to acquit Trump. But McConnell plainly had the option, if he had preferred, to express “temporary allegiance” to Senate precedent and then vote to convict.
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Drug and Device Product Liability Litigation Strategy (affiliate links). You can reach him by email at inhouse@abovethelaw.com.