Only hours before the Senate had been slated to vote on whether or not to convict former President Donald Trump, Senate Minority Leader Mitch McConnell reportedly confirmed to his GOP colleagues that he’d be voting to acquit.
According to multiple sources, McConnell provided the confirmation via an email he penned to his caucus Saturday morning.
“Colleagues — as I have said for some time, today’s vote is a vote of conscience and I know we will all treat it as such. I have been asked directly by a number of you how I intend to vote, so thought it right to make that known prior to the final vote,” he reportedly wrote.
The Senate leader then accused the trial itself of lacking “jurisdiction” and noted that, had the former president truly committed criminal acts, he could have been and still can be easily prosecuted in a traditional court of law.
“While a close call, I am persuaded that impeachments are a tool primarily of removal and we therefore lack jurisdiction. The Constitution makes perfectly clear that Presidential criminal misconduct while in office can be prosecuted after the President has left office, which in my view alleviates the otherwise troubling ‘January exception’ argument raised by the House,” McConnell wrote.
After the former president’s lawyers demanded earlier this week that the case against him be dismissed on the grounds that his impeachment itself was unconstitutional, House impeachment managers fired back by warning of a “January exception.”
The idea behind the exception is that, if a president who’s already left office can’t be impeached for crimes committed while in office, then a hypothetical president could commit certain crimes and then simply resign from his post before being impeached.
McConnell’s point was that this concern is unwarranted since the hypothetical former president could be prosecuted in a court of law like everybody else.
Concluding his email, the Senate leader wrote, “Given these conclusions, I will vote to acquit.”
This would have meant that Trump would be in the clear by day’s end had the Senate not voted later that morning to allow witnesses to be subpoenaed for the trial.
Five Republicans — Sens. Susan Collins, Lisa Murkowski, Mitt Romney, Ben Sasse and Lindsey Graham — reportedly joined Democrats in voting for the measure, thus giving Democrats an easy 55-45 majority.
Graham was the only Republican who initially voted “nay” but later changed his vote to an “aye” at the last minute.
This means the vote must be delayed, because it’s obviously not possible to subpoena witnesses and have them testify by day’s end.
That said, assuming McConnell, the Senate’s highest-level GOP congressman, maintains his acquittal vote even after witnesses are heard, the chances of Trump being convicted will drop to zero — — not that they were ever much higher than zero.
“McConnell’s acquittal vote will likely shrink the number of Republicans who considered voting to convict Trump in his second impeachment trial, making a conviction on the House’s single charge of ‘incitement of insurrection’ unlikely,” Axios notes.
Democrats would need 17 Republicans to cross the aisle and vote with them to convict the former president, yet only a handful are even slightly likely to make the move.
Among them are the usual cohorts, including but not necessarily limited to Romney, Murkowski, Collins, Sasse and even reportedly Pat Toomey and Bill Cassidy.
“I will definitely consider whatever articles they might move because, as I’ve told you, I believe the president has disregarded his oath of office. He swore an oath to the American people to preserve, protect and defend the Constitution. He acted against that. What he did was wicked,” Sasse said during an appearance on CBS News two days after the Jan. 6th riot at the U.S. Capitol.
But to be fair, McConnell had expressed a similar sentiment.
“While the press has been full of speculation, I have not made a final decision on how I will vote and I intend to listen to the legal arguments when they are presented to the Senate,” he said in a note to his colleagues around that time.
He also delivered a speech on the Senate floor tearing into the former president.
“This mob was fed lies. They were provoked by the President and other powerful people. And they tried to use fear and violence to stop a specific proceeding of the first branch of the federal government which they did not like,” he said.
Yet McConnell wound up performing a 180 and announcing his intent to vote to acquit, so perhaps there’s still a chance Sasse and his colleagues may do the same.
Keep in mind, however, that Sasse was among the six Republicans — including Collins, Murkowski, Romney, Toomey and Cassidy — who voted Tuesday to not dismiss the trial. And of these six Republicans, four of them went on to vote to allow witnesses.