Sen. McConnell: Do You Quit if You Acquit?

This post is not persuasive—it will change no one’s mind on President Trump.

Our unique times offer a chance to understand our wonderful—and incomplete—Constitution.

Setting: Sen. McConnell suggested recently that he would move to acquit the president of the two articles of impeachment. 
Smart tactic from his vantage point: He would need only 51 votes to acquit, whereas 67 votes are needed to convict.

But can the Senate acquit President Trump without holding a trial? 
The answer appears to be yes.

In 1993, the Senate convicted Judge Walter Nixon. He was in jail by this time, convicted on two counts of perjury connected to charges that he accepted bribes. He remained on the bench.

He argued to the Supreme Court that he was not given a trial—and he was factually correct. A Senate committee— not the full Senate— held four days of hearings, heard from 10 witnesses, including Nixon, and presented a transcript and record to the full Senate for a vote.

Nine justices upheld the conviction, but three wrote concurring opinions. This meant they didn’t agree with the majority opinion which said the Senate has sole authority to determine its trial procedures.

In an eerily prescient paragraph, Justices White and Blackmun said that there must be some limit on the Senate’s trial powers, or else the textualism around its “sole power to try all Impeachments” would be a nullity.

They said:

It should be said at the outset that, as a practical matter, it will likely make little difference whether the Court's or my view controls this case. This is so because the Senate has very wide discretion in specifying impeachment trial procedures and because it is extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges. Even taking a wholly practical approach, I would prefer not to announce an unreviewable discretion in the Senate to ignore completely the constitutional direction to “try” impeachment cases. 

When asked at oral argument whether that direction would be satisfied if, after a House vote to impeach, the Senate, without any procedure whatsoever, unanimously found the accused guilty of being “a bad guy,” counsel for the United States answered that the Government’s theory “leads me to answer that question yes.” Tr. of Oral Arg. 51. Especially in light of this advice from the Solicitor General, I would not issue an invitation to the Senate to find an excuse, in the name of other pressing business, to be dismissive of its critical role in the impeachment process.

In sum: There are no known limits on the Senate power to try an impeachment. But two justices foresaw today, when one party defends the president on grounds that he has been impeached for being “a bad guy” and a Senate “trial” might turn into a political circus or a quick vote to acquit (51 votes)—neither of which is what the framers had in mind in using the term “sole power to try all Impeachments.” 

If the two justices were right to suggest a limit, it's very doubtful that a Supreme Court would step in to correct the process. That's the significance of Judge Nixon's conviction, i.e., six justices said that the Supreme Court has no practical role to play in defining what is a trial in the Senate.

To acquit means to quit your role as a Senate jury.