January 6th was a shameful day. A mob bled law enforcement and besieged the first branch of government. American citizens tried terrorism to stop a democratic process that they disliked.
No question, the former President Trump has moral responsibility. His followers stormed the Capitol over the unsolved lies he shouted into the world’s largest megaphone. His behavior during and after the chaos was also incomprehensible, from the attack on Vice President Mike Pence during the riot to the praise of the criminals after it ended.
I was as outraged as any member of Congress. But senators take our own oaths. It wasn’t our job to find a way to impose a penalty. The Senate’s first and fundamental task was to protect the constitution.
Some brilliant scholars believe that the Senate can try to convict former officers. Others don’t. The text is unclear and I do not allow my colleagues to draw their own conclusions. However, after careful consideration, I concluded that Article II.4 limits impeachment and conviction to current officials.
All agree that “treason, bribery or other serious crimes and misdemeanors” exhaust the valid grounds for conviction. It follows that the list of people in that sentence – “the President, Vice-President, and all civil servants” – also exhausts its valid subjects.