When our Founding Fathers incorporated the Impeachment Clause from English Common Law into our U.S. Constitution, they made a simple, yet significant, change: They increased the requirement to convict someone of an impeachable crime from a simple majority, as in English Common Law, to a two-third super majority, currently 67 votes.
This voting change is the reason our ex-president was not convicted at his second impeachment trial for inciting the Jan. 6 insurrection, defined as “an act of resistance against an established government.” Specifically, the vote was 57 votes to convict, 10 votes shy of the required 67.
This meant, while the majority of senators agreed that our ex-president was guilty of insurrection, not enough voted to formally convict him, thereby making the sentencing, or “judgement” as it’s referred to in the Constitution, to disqualify him from holding an “office of honor” via a simple majority, a moot point.
It’s noteworthy that seven senators from our ex-president’s political party voted to convict him, meaning this impeachment vote was the most patriotic, bipartisan vote ever.
The operative word here is “vote;” it is not known how many more Senators would have voted to convict our ex-president had they not feared for their and/or their families’ lives if they voted against him. Such is how voter intimidation works in a despot-controlled government, i.e., no one, for instance, in North Korea’s Supreme People’s Assembly would dare vote again Kim Jong-Un.
In any event, one might wonder why our ex-president was not, at the same time, criminally charged for inciting the Jan. 6 insurrection under criminal code USC 18.115.2383: “inciting or assisting in rebellion against the authority of the United States.”
The answer is the same as the reason why the Mueller Report did not recommend charging our ex-president with extortion for withholding military aid to Ukraine unless they gave him some “dirt” on President Biden: The Department of Justice (DOJ) has a policy, issued in 1973, that states a citizen cannot be charged with a crime while she/he is President of the United States. In other words, the president is above the law, or, as Mr. Nixon put it: “when the president (commits a crime) that means it is not illegal.” This policy meant the only option for holding our ex-president accountable for his criminal behavior, whether it be extortion or insurrection, was the impeachment process.
This also means that now that he is not president, the DOJ can pursue criminal charges against him. And indeed, that is what the DOJ is doing.
Of course, the legalese described above is irrelevant when compared to the moral issue involving the American tradition of an honorable and peaceful transition of power. This tradition started with George Washington when he declined in 1796 to continue as president (Napoleon was shocked), continued with John Quincy Adam’s 1828 bitter loss, and more recently occurred in 1972 when Richard Nixon, even after winning an overwhelming victory, voluntarily resigned rather than face impeachment, stating it was what was best for the country.
And then there was the 2020 election. Instead of accepting his overwhelming loss and working toward a peaceful transition of power, our ex-president embarked on a “scorched earth” strategy to damage the credibility of our democratic institutions, specifically our election, judicial, and educational institutions, inflame the passions of his followers, and exhort them to storm the U.S. Capitol. So much for an honorable and peaceful transition of power.
Peter Engstrom lives in Danville.