Impeachment, Act II Scene 4 - Acquittal

Despite voting to call witnesses this morning, the trial of Donald Trump concluded today with a 57 to 43 vote to convict, short of the two thirds majority required for the motion to pass. Interestingly, one senator, Richard Burr of North Carolina who, on the prior question on constitutionality of this impeachment, had earlier voted that it was not, nevertheless voted to convict.  For the record the other GOP senators who voted to convict were Bill Cassidy (Louisianan.), Susan Collins (Maine), Lisa Murkowski (Alaska), Mitt Romney (Utah), Ben Sasse (Nebraska) and Patrick Toomey (Pennsylvania).  

That raises an interesting question (which I hope scholars with expertise in this area will shortly opine on) as to who has the final say as to the constitutionality of an impeachment. The Constitution identifies the Senate, rather than the judicial branch, as the sole body that is empowered to try impeachments but does that mean they have the ultimate authority to interpret the constitution as to when impeachment is or is not constitutional?  It is possible they do not and that the vote it took last week to proceed should properly have been decided by the Supreme court. But were that the case, shouldn't Trump's legal team have immediately challenged in the courts the Senate's vote to proceed with the trial?  That they did not suggests either incompetence (certainly plausible) or that they implicitly acknowledged the legitimacy of the Senate in ruling on the constitutionality question. Note, too, that no Senators, who might have had standing to bring such a case, chose to do so.   

That failure to bring a legal challenge as to the Senate's right to decide the constitutionality question implicitly endorses that right. It follows then that Senators were in essence legally required to vote on the merits of the case and not its constitutionality, since constitutionality was now a settled matter, regardless of how they had voted on the question when it was presented earlier in the trial.  This provides the basis for Richard Burr's decision who, having voted against the impeachment's constitutionality, nonetheless voted to convict Trump on the merits of the case. 

Turning to McConnell's speech after the trial, McConnell made a fierce statement of condemnation saying essentially that Trump's actions leading up to the insurrection were what caused it to happen. But, he suggested, he did not vote to convict because he felt that would violate the constitution. While I have some sympathy for the argument he made and can see how a strict Originalist would likely have reached that same conclusion, the question of constitutionality was no longer at issue; it was settled by the Senate in its earlier vote. Even if he disagreed with the constitutionality of the impeachment (which he explained he did), he should have been bound by his oath as a juror in the trial to proceed and decide based on the merits. Judging by the unambiguous statements he made on the Senate floor this afternoon, he clearly holds Trump responsible for the insurrection; which can only mean that by not judging based on the merits he has violated the oath he took and thus he should resign.