My Turn: Saved by a conjunction

  • AP PHOTO/J. SCOTT APPLEWHITE AP PHOTO/J. SCOTT APPLEWHITE

Published: 2/22/2021 7:12:03 AM

The Republican Senators who acquitted Donald Trump, despite admitting that he had incited a deadly insurrection against the United States, grounded their decisions on a conjunction. Was the acquittal predestined by a rare planetary alignment? No … the conjunction that spared Trump was grammatical, not astrological.

Speaking for his fellow “Trumpublicans,” minutes after they voted to let the former president off, scot free, Minority Leader McConnell explained: “While it’s proven Trump incited the worst insurrection in American history, did nothing to stop it in progress, and flagrantly violated his oath of office, disqualifying him from holding another government position (without first removing him from office) is unconstitutional.”

Article I, Section 3 of the U.S. Constitution provides in pertinent part:

“Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States.”

Here the Framers enumerated two distinct punishments, separated by a comma and the conjunction “and.” The latter, as a settled matter of statutory construction, means “one or the other or (where possible) both.” Thus, upon conviction, the Senate can remove from office, disqualify from holding a federal job again, or (where possible) impose both punishments.

In Trump’s case, although he incited insurrection and was impeached while president, his term expired before the conviction/sentencing phase of his Senate trial could begin. There was no need to remove Trump from office (the American electorate and the calendar had taken care of that), but the Senate was not precluded from imposing the other punishment — disqualification — allowed by Section 3.

“Not so,” argues McConnell, “‘and’ always means ‘both.’ Removal and disqualification are an indivisible package. If the Senate can’t do both, it can’t do either. Therefore, the entire proceeding is unconstitutional.”

That ludicrous contention, if accepted, would create the so-called January Exception — i.e., all impeached presidents can be punished by the Senate except those lucky scoundrels whose impeachable conduct occurs when only a few days remain in their term.

The “Trumpublicans” crabbed reading of Section 3 is not only dead wrong as a matter of statutory and grammatical construction, but yields a result utterly devoid of common sense. Think, for example, of a criminal statute that reads:

“Upon conviction for first-degree murder, the punishments that may be imposed by the sentencing judge or jury are execution by lethal injection and life imprisonment without chance of parole.”

Using McConnell’s analysis, a convicted murderer subject to this provision would have to be executed before he could be given a life sentence.

Do the “Trumpublicans” really believe the Framers meant a three-letter conjunction (“and”) to render the Senate powerless to disqualify a manifestly dangerous criminal like Trump from holding federal office again?

No. The claim of unconstitutionality here is no more than a red herring — superficial cover for the spineless “Trumpublicans” who knew Trump was guilty as charged, but needed to acquit him for reasons of selfish, un-American political expediency. McConnell had urged Republicans to “vote their conscience,” but the vast majority of them did the exact opposite.

The Minority Leader’s speech, after the vote, was a transparent attempt by the Republicans to “have their cake and eat it too.” Actions, however, speak louder than words. Hiding behind the demonstrably bogus smokescreen of unconstitutionality, Republicans voted to acquit Trump, and their party now owns the worst president in American history. Like it or not, the party is defined by everything Trump has said and done, including the choice of violent mob rule over the democratic process. Moderate, conscientious Republicans should quit this indelibly tarnished Party in droves.

On Feb. 13, 43 cowards abandoned their country in its hour of greatest need, thereby enabling a ruthless tyrant to continue to menace our democracy. Their names shall forever be synonymous with shame and dishonor.

David Engle, now retired, practiced mental health law for 35 years. He is a Shelburne resident.



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