Opinion: Why Trump’s acquittal doesn’t actually let him off the hook
In a historic vote this week, just the third of its kind in US history, one Republican and 48 Democratic Senators voted to convict Trump on at least one of the two Articles of Impeachment. As predicted, the GOP-controlled Senate voted to acquit the (still) impeached president, after voting days earlier not to allow witnesses to testify in the trial.
The Constitution requires a two-thirds majority to convict the president and with the 52–48 vote straight down party lines, that threshold wasn’t met. But that doesn’t mean Trump was exonerated or cleared of any and all wrongdoing. No, his slate wasn’t wiped clean no matter how Republicans (aside from Mitt Romney) are already trying to spin the news .
Don’t let the headlines fool you — an acquittal isn’t the equivalent of an exoneration; not in a criminal trial and definitely not in an impeachment. Even if this were a criminal trial, an acquittal would only mean that the prosecution didn’t prove its case beyond a reasonable doubt. An acquittal in a criminal trial would not mean that the court found that the defendant committed no wrongdoing (exoneration).
Impeachment trials and criminal trials are entirely different legal proceedings — they have different laws and procedures to follow. In an impeachment, the Senators decide not only the facts, but also many of the procedures — functioning both as judge and jury and theoretically doing both objectively. This stands in stark contrast to a criminal trial, where the judge decides on matters of law and the jury decides the facts, because our legal system is built upon the belief that a person cannot be both judge and jury and remain objective.
In spite of today’s acquittal, the House has warned that an intelligence panel will continue to investigate Trump and keep an eye on Vladimir Putin’s BFF. But perhaps most importantly, there is no law that says a former president cannot be investigated and prosecuted for criminal wrongdoing once he is out of office. He’s not immune to criminal prosecution once he’s a civilian — he’s not off the hook forever.
After the vote, I spoke with University of Missouri professor of criminal law Frank Bowman and author of High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump. He told me, “The fact that a partisan split of Senators didn’t vote to convict him doesn’t exonerate anything. All we can conclude from that is for any one of a variety of reasons they [the Senators who voted “not guilty”] didn’t vote to convict him. If anyone suggests that a vote to not convict means that he didn’t do the things he’s charged with, well that’s disproven by the statements of a number of even Republican Senators.”
And Bowman is right — several Republican Senators concluded that Trump did what he was accused of, and that it was highly improper. But they argued either that what he did didn’t rise to the level of a High Crime and Misdemeanor, or that the proper venue for judgment is the election in November.
I asked Bowman about that reasoning and told me, “Those statements don’t exonerate anything. The analogy is the Andrew Johnson case where the Senate missed convicting Johnson by one vote. He wasn’t exonerated… We just have the votes, but we don’t know why people did what they did. Even when we have the statements about why Senators voted the way they did — they aren’t often entirely candid.”
Trump has incredible power over his electorate and GOP Senators had good reason to avoid taking such a big political risk — reelection. That was exactly what experts predicted would happen did, because, as we’ve seen these past three years, when Trump wants Republicans to do his bidding, they quietly fall in line. Falling in line is what America and the world witnessed this week — not an honest and objective vote on whether or not the president abused his powers of office and/or obstructed Congress.
Regardless of today’s vote, Trump’s legacy will remain that of the third president impeached in US history. There is no expunging of the record, no matter how many times he claims it’s “perfect”; there will be no clearing of his name with this acquittal because he was not exonerated. His legacy will continue to be one of throwing children in flu-infested cages on the border. He will remain the president who created the Muslim ban, okayed the expansion of illegal Israeli settlements, and rolled back US policy on climate change and landmines. Trump will remain the president who ordered the exit of the US from the UN Human Rights Council and the United Nations Educational, Scientific and Cultural Agency (UNESCO).
The bigger vote on Trump’s conduct is yet to come with November’s presidential elections. But even that’s not fair because winning the popular vote doesn’t mean a candidate wins the presidency — as Democrats saw with Hillary Clinton’s stunning defeat in 2016.
I’m scared to say that we may have to wait longer than November for justice. Even if a Democrat beats Trump in November, it will take the printing of history books for generations to come to truly determine whether Trump’s conduct, and the votes of those who supported him during this trial, are in keeping with this country’s evolving values.
Emerging from the black hole of corruption, nepotism, hysteria, racism, and the total disregard for democracy and rule of law that has been the hallmark of The Donald’spresidency won’t be easy for whomever takes over the Oval Office after what is hopefully Trump’s first and last term in office. So, I will keep Senator Chuck Schumer’s comments about Wednesday’s outcome close to my heart in the coming months, or even years. He said, “Don’t lose hope. There is justice in this world and truth and right…America does change for the better. Never, never lose faith.”
Let’s hope he’s right. Now, excuse me while I go rip up some paper.
Originally published at https://www.independent.co.uk on February 6, 2020.