Statement: The Responsibility of GOP Senators to Adjudicate Accountability in Impeachment Trial

February 2, 2021

Statement of Members of Checks and Balances and Like-Minded Lawyers and Former Government Officials on the Responsibility of Republican Senators to Adjudicate Accountability in Impeachment Trial:

In a recent Senate vote, 45 Republican Senators tried to avoid their responsibility to act as jurors in the impeachment trial of former President Trump. They cited a discredited legal argument that a Senate trial of the impeached President would be unconstitutional.[1] Some of them even made the political claim that the planned trial was a retributive vendetta aimed at victimizing Mr. Trump because of the intense hatred of him by the Democratic Left.

Five Republican Senators (Collins, Murkowski, Romney, Sasse, and Toomey) courageously refused to sign on to a narrative that would perpetuate Mr. Trump’s pernicious deception and prevent him from being held accountable for his misconduct. They refused to agree that an impeachment trial was a “waste of time,” a Democratic trap, and that “moving on” would be a positive step in unifying the country.

We believe an impeachment trial is constitutional and essential to focus the Nation on the gravity of what Mr. Trump did. Following an election that he had clearly lost, he used the platform of the presidency relentlessly to spread the “Big Lie” that he in fact had won, but that the Democrats had stolen the election from him through electoral fraud. Day after day, week after week, he exhorted his followers to protest the “Steal,” and he promised vindication. Unable in dozens of court challenges to offer any proof of fraud or other significant irregularities, he attempted to pressure, bully, and blackmail state officials to change the results in states he had lost. In a recorded call, he pressured Georgia’s top election official to “find” him just enough votes to turn his defeat into a victory. Failing in that effort, he attempted to prevail upon senior officials of the U.S. Justice Department to pressure other Georgia officials to achieve that result based on a non-existent fraud investigation.

Frustrated in his efforts at the state level, then-President Trump summoned his supporters to Washington on January 6 for a rally on the day of the counting of the Electoral College votes. He claimed once again that the election had been stolen, and that they, his followers, were in danger of losing their country unless they stopped the process. “Be there, will be wild,” he tweeted. At the rally he urged the crowd to march on the Capitol, assuring them he would be with them. The mob was thereby incited to assault the Capitol to disrupt the constitutional process essential to the peaceful transfer of power.

We now know that some members of the mob came well-armed and fully prepared to storm the Capitol. The arrest and execution of elected officials who had refused to accede to President Trump’s will was part of their game plan. Members of the mob advanced through the Capitol looking for the Vice President and the Speaker of the House by name – Vice President Pence because he refused to be bullied by the former President’s public demands that he subvert the vote-counting process by refusing to acknowledge Biden elector votes from several states in his capacity as Presiding Officer of the Joint Session. In the end, five people died, and more than a hundred were badly injured. Only through the heroic actions of law enforcement officers was the death of or serious injury to multiple legislators averted.

As president, Donald Trump blatantly violated his oath to protect and defend the Constitution and faithfully execute our laws. In responding to this assault on our democracy, we should expect from our elected leaders the level of courage we routinely demand from our men and women in uniform; we expect our elected leaders to have the same courage to keep us safe at home. It will be a permanent stain on the history of the Republican Party and the legacy of its members in the U.S. Senate if they fail to find a way to hold a President of their party to account for this unprecedented mayhem at our Nation’s Capitol and attack on our Constitutional order. National unity demands political accountability in the exercise of power.

A political party that permits its President to violate his oath of office and the rule of law without serious consequence will have little basis to ask the American people to entrust it with governing responsibly again.  Our country needs two serious political parties, each capable of governing, for our democracy to remain strong.

  • Jonathan Adler
  • Donald Ayer
  • Frederick Beckner III
  • John B. Bellinger III
  • Richard D. Bernstein
  • Travis Brown
  • Michael A. Caplan
  • Bobby Chesney
  • George T. Conway III
  • Mickey Edwards
  • Miranda Perry Fleischer
  • Charles Fried
  • Stuart M. Gerson
  • Peter D. Keisler
  • Edward Larson
  • Marisa C. Maleck
  • Irina D. Manta
  • John M. Mitnick
  • Carter Phillips
  • Trevor Potter
  • Alan Charles Raul
  • Jonathan C. Rose
  • Peter Ross
  • Nicholas Rostow
  • Paul Rosenzweig
  • Andrew Sagor
  • Timothy Sandefur
  • Robert Shanks
  • Christopher Shays
  • Erin Sheley
  • Michael Shepherd
  • Ilya Somin
  • Stanley A. Twardy, Jr.
  • William F. Weld
  • Christine Todd Whitman
  • Keith Whittington

Each of us speaks and acts solely in our individual capacities, and our views should not be attributed to any organization with which we may be affiliated.

[1] Brian C. Kalt and Frank Bowman, Congress can impeach Trump now and convict him when he’s gone,  The Washington Post (Jan. 11, 2021); Keith E. Whittington, Can a Former President Be Impeached and Convicted?, Lawfare (Jan. 15, 2021); Constitutional Law Scholars on Impeaching Former Officers (Jan. 21, 2021); Michael McConnell, Impeaching officials while they’re in office but trying them after they leave (Jan. 28, 2021). These scholars have pointed out that the argument is based on a very contorted reading of only one of the six provisions of the Constitution mentioning impeachment and ignores more than 200 years of history during which impeached officials in fact have been tried in the Senate after they left office.