Senator Ted Cruz effectively made the Democratic case Tuesday for why it would be constitutional for the Senate to impeach Donald Trump after he has left office.
Writing at Foxnews.com, Cruz argued against impeaching Trump for his own reasons. But he clearly torpedoed the lame argument about constitutionality to which 43 of his Republican colleagues are desperately clinging as a political lifeboat.
Here's what he wrote:
"The constitutional question of whether a former president can be impeached or tried after he has left office is a close legal question. On balance, I believe that the better constitutional argument is that a former president can be impeached and tried—that is, that the Senate has jurisdiction to hold a trial.
"…Article I, Section 2 of the Constitution gives the House "the sole Power of impeachment," and Section 3 gives the Senate "the sole Power to try all impeachments." At the time the Constitution was adopted, there was meaningful debate over whether impeachment encompassed so-called "late impeachments," i.e. after the person had left office.
"…Given the historical underpinnings and the Constitution's broad textual commitment ("sole power") of the impeachment power to the House and Senate, I believe the best reading of the Constitution is that the Senate retains jurisdiction. Imagine, for example, that evidence were uncovered that a former president had sold nuclear secrets to the Chinese government. In that instance, where the president had hypothetically committed both treason and bribery (explicit grounds for impeachment in the Constitution), there is little question that both the House and Senate would have exercise jurisdiction to impeach and try those crimes."
Translated for us lay poor folk, Cruz essentially said that if Trump was caught selling secrets to the Chinese, the Senate would be perfectly within its rights to impeach him even after he left office. But not for something as ill-defined (and presumably petty) as insurrection against American democracy.
Cruz instead bases his objection on his view that the Senate can decide not to exercise its power, rather than that it would be unconstitutional to do so:
"Nothing in the text of the Constitution requires the Senate to choose to exercise jurisdiction. In these particular circumstances, I believe the Senate should decline to exercise jurisdiction—and so I voted to dismiss this impeachment on jurisdictional grounds.
Cruz chose to stick to more mundane partisan arguments:
"The present impeachment is an exercise of partisan retribution, not a legitimate exercise of constitutional authority. The House impeached President Trump in a mere seven days. It conducted no hearings. It examined no evidence. It heard not a single witness.
"For four years, congressional Democrats have directed hatred and contempt at Donald J. Trump, and even greater fury at the voters who elected him.On the merits, President Trump's conduct does not come close to meeting the legal standard for incitement—the only charge brought against him.
"His rhetoric was at times over-heated, and I wish it were not, but he did not urge anyone to commit acts of violence. And if generic exhortations to "fight" or "win" or "take back our country" are now indictable, well, be prepared to arrest every candidate who's ever run for office or given a stump speech.
"If that's the new standard—and if strong rhetoric constitutes "High Crimes and Misdemeanors"—then Congress better prepare to remove House Speaker Nancy Pelosi, D-Calif., Rep. Maxine Waters, D-Calif., Sen. Chuck Schumer, D-N.Y. and former Sen. Kamala Harris, D-Calif., next."
It doesn't take a lawyer to rebut all that. None of the horrors Cruz cited should have any possible bearing on the Senators' impeachment deliberation. If Trump orchestrated the Capitol insurrection, it really doesn't matter what the motivations are of the Democrats for bringing the impeachment charges.
Ditto for whether the House processes --the equivalent of a grand jury investigation -- met Cruz's arbitrary standards for evidence-gathering. As Cruz well knows, how the House decides to approach an impeachment is 100% its decision, just as the Senate has 100% control over how it conducts a trial.
And whatever equivalencies the Republicans can conjure up with "whataboutism" arguments may play fine on the political stage. But they're absolutely not exculpatory to Trump for his conduct, not even a little bit.
Nonetheless, it's great that Cruz has decided to craft his own theory of the case, because in so doing he blew up the central argument of Trump's clown-car legal team: That it's unconstitutional even to consider impeaching a president once he's out of office.
Cruz certainly got the attention of the conservative National Review, which summed his op-ed view up in the headline, "Cruz: Actually It Is Constitutional to Impeach and Convict a Former President."
Writer John McCormack concludes:
"Cruz seems to have skipped to the conclusion of the impeachment trial. 'On the merits, President Trump's conduct does not come close to meeting the legal standard for incitement — the only charge brought against him,' Cruz writes. Having reached that conclusion before the impeachment trial began, Cruz works backward to argue that the trial is unconstitutional.
"I'm unaware of any other Senate Republican who shares Cruz's view of Tuesday's vote on the constitutionality of the trial."
In other words, based on that conservative writer's take, the other 43 Republican senators are staking their claim to a constitutional claim that is rejected by the presumed leading expert on constitutional law in their midst. You know, the guy that was going to argue for Trump at the U.S. Supreme Court.
Maybe the Democrats need to call Cruz as a witness.
