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A constitutional scholar on why Trump’s impeachment trial should proceed

Democrats and Republicans Tuesday made their arguments over the constitutionality of President Trump impeachment trial and his role in the attacks on the Capitol in January. Michael McConnell, of the Stanford Law School, is a constitutional scholar and former judge who was nominated to the 10th Circuit Court of Appeals by President George W. Bush. He joins Judy Woodruff to discuss.

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  • Judy Woodruff:

    And, next, we turn to constitutional scholar and former judge Michael McConnell of Stanford University Law School. He was nominated to the 10th Circuit Court of Appeals by President George W. Bush, and he served on the bench for seven years.

    Judge McConnell, thank you very much for joining us.

    You may have just heard Robert Ray saying, in so many words, that it is a mistake, that it is not constitutional for this trial to go forward, which we now know that it will, because that was the Senate vote. But his argument is that it isn't constitutional, because the decision of whether someone runs for office again is something that should be left to the voters and not to the Congress.

    I would love you to react to that, but also to explain your view on the constitutionality of this trial.

  • Michael McConnell:

    What's constitutional and isn't doesn't depend upon what any of us may think is good idea. It's what the Constitution says.

    And the Constitution clearly gives the Senate the authority to try all impeachments and to impose the sanction of disqualification from future office.

    Senators will decide whether that's an appropriate sanction or not, but it certainly is authorized by the Constitution.

  • Judy Woodruff:

    And so this argument that it's left — it should be left to the voters, you're saying, doesn't hold weight?

  • Michael McConnell:

    Well, that's an argument to the discretion of the senators, but it is not a constitutional argument.

  • Judy Woodruff:

    So, you're comfortable with the — essentially, with the argument, with the fact that this trial is going ahead, that it is constitutional.

    So, that brings us, Judge McConnell, to the question of the president's role or not in inciting this insurrection. How to you read the evidence so far that you have seen?

  • Michael McConnell:

    So, let me just be clear first on the constitutionality point, because I think many people have missed this, that I do think that the Constitution allows for impeachment only of current officeholders.

    But Mr. Trump was impeached when he was president of the United States on January 13, so that requirement is met. Once the House impeaches, there's a separate provision of the Constitution that gives the Senate the power to try all impeachments.

    So, while I do agree that impeachment is limited to current officers, that does not disqualify this particular proceeding.

    Now, as to the incitement, we haven't seen all of the — all the evidence yet. I think the House made a serious mistake in framing this impeachment in terms simply of the criminal law of incitement, because I think it will invite people to treat this as if this was a criminal prosecution of Mr. Trump.

    It is not. This is an impeachment — a trial of an impeachment, not a criminal trial for incitement. I doubt very much that Mr. Trump could be convicted of the crime of impeach — of incitement. But that's not what the Congress is limited to.

    The question here is whether Mr. Trump committed high crimes and misdemeanors, which is a term of art which extends beyond mere violations of the criminal code to serious abuses of the office, and would include such things as attempting to persuade officers of the states to disregard election results after proper challenges to those election results had been properly pursued in the courts and rejected.

    It would include the failure of Mr. Trump to take any action to stop the riot when it was taking place, when he was in the very best position to do that. The president does have the duty, under the Constitution, to take care that the laws be faithfully executed.

  • Judy Woodruff:

    So, just very quickly, the wording, instead of incitement to insurrection, in your view, would have been stronger if it had been worded how?

  • Michael McConnell:

    I think that it should have — it should not have been framed in terms of the precise words of the criminal violation, and it should have included both the attempts to persuade officers not to certify properly cast voting results, and also the failure of the president to take steps that he should have taken to end the riot.

  • Judy Woodruff:

    Former Judge Michael McConnell, now a professor at Stanford Law, thank you very much. We appreciate it.

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