This week, on a pivotal Senate vote on a motion to scrap this second, and equally as idiotic, impeachment of Trump, Cassidy joined five other GOP senators in opposing the move, which contested whether impeachment could occur against a former officer of the United States. The Democrat-led House of Representatives had impeached Trump just prior to his departing office, but the constitutional question remained of whether the Senate could try him after he became a private citizen.
Jurisprudence and legal thinking on the issue produces a mixed picture. Good arguments exist for and against, although the latter has more validity. Proponents have argued that even if removal has disappeared as a rationale for trial, disqualification from future office remains as a means of deterrence for bad behavior in office. However, the Framers of the Constitution gave no indication that the two punishments existed independently of each other, through the record of their debate nor in a reading of The Federalist.
In other words, disqualification exists as an option if and only if it involves a current officer of the U.S if convicted. Removing this as a punishment doesn’t destroy the deterrent effect, since the Constitution allows trials over officer behavior in the judicial system regardless of any congressional action, and extension of impeachment to private citizens (as suggested in the only post-service trial ever held by the Senate) would subvert other constitutional protections.
But Cassidy didn’t say he voted for constitutionality because he studied the issue and found that side of the debate more compelling. Instead, he said “I would be an impartial juror. Anyone listening to those arguments the House managers were focused, they were organized, they relied upon both precedent, the Constitution, and legal scholars.” In contrast, the Trump defense team was “disorganized, they did everything they could but to talk about the issue at hand and when they did talk about it they glided over it, almost as if they were embarrassed of their arguments,” said Cassidy, further adding that anyone interested in the thought process behind his vote should watch video of the proceedings.
This approach is exceptionally unstatesmanlike. Cassidy likens himself to a juror over a criminal or civil trial – but this is neither. Unlike in those instances, the plaintiff (the government in criminal and some civil trials) doesn’t allege lawbreaking (criminal or tort) by the defendant.
Instead, the House accuses the defendant of violating something it made up (the Constitution lists only two crimes left undefined legally, treason and bribery, as impeachable and lets anything else be fair game) which may bear no relation to the law, and in this instance doesn’t and is politically-driven. Senators aren’t jurors, pledging to confine themselves only to the admissible evidence as presented and sequestering themselves from any outside information, but are called upon to use judgment utilizing the breadth of their learning to make rulings, including on procedural questions such as whether the matter is justiciable.
Cassidy appears to indicate he would rather settle for sophistry, as if he were some country bumpkin letting himself be led by the nose and manipulated into making decisions in a vacuum based on which slick lawyer sounds more believable. In a court of law, some cases do get decided because one side does a poor job of presenting a case. But this isn’t a court of law, and we should expect more out of senators, that they use all available information in decision-making – whether it be votes on procedures, nominations, amendments, bills, or impeachment trials – and not intentionally disregarding, or remaining willfully ignorant of, everything except what a few people say in a particular place at a particular time.
By his own admission, Cassidy appears to have fallen down on the job in evaluating the constitutional question. You can fault Cassidy for an intellectual position that declares a post-service trial constitutional, but he deserves scorn for his dereliction of duty to Louisiana in failing to vet fully the issue.