The Washington Post
Inside Mcconnell’s decision not to convict Trump
Adapted from “UNCHECKED: The Untold Story Behind Congress’s Botched Impeachments of Donald Trump,” by Rachael Bade and Karoun Demirjian, published by William Morrow. Copyright © 2022 by Rachael Bade and Karoun Demirjian. Reprinted courtesy of Harpercollins Publishers. To be published Oct. 18.
Mitch Mcconnell sat in his office on Tuesday, Jan. 26, 2021, agonizing over how to cast what he knew would be one of the most pivotal votes of his career. Since the harrowing events of the Jan. 6 attack on the U.S. Capitol, the Senate GOP leader — recently demoted to the minority — had been all but certain that his party was finally going to shun Trump, a development he’d welcomed with a sense of relief. The former president, he was sure, had committed impeachable acts and posed a toxic danger to democracy.
But while Mcconnell was ready to be done with Trump, his party, it seemed, was not. To his chagrin, a large chunk of his members were once again coalescing around the former president. And they were about to put him in a bind.
That afternoon, Sen. Rand Paul, Mcconnell’s younger and far more PRO-MAGA Kentucky delegation mate, was forcing all senators to go on record and declare whether a post-presidential conviction of Trump was constitutional. It was a question Mcconnell had been grappling with for the two weeks since the House had impeached him — and he was still far from being ready to answer it.
The vote, Mcconnell knew, would be seen as a test for the looming impeachment trial, making the stakes of his choice incredibly high. If GOP senators, under his leadership, were willing to endorse the constitutionality of the proceedings, it would signal that a Trump conviction was a real possibility. But if they voted the opposite way, condemning the entire trial, it would foreshadow that Republicans would likely help the former president escape accountability — something Mcconnell was loath to do.
This account of Mcconnell’s role in weighing Trump’s second impeachment trial is based on interviews with people familiar with Mcconnell’s thinking and deliberations, who spoke on the condition of anonymity to speak candidly.
Mcconnell knew many of his rank-and-file were torn over how to handle the situation — and that in their uncertainty, they would look to him for guidance. If he declared the trial to be constitutional, breaking with Trump in the process, he could set the stage for a party mutiny, helping the GOP turn the page on Trump for good. It was an appealing prospect: conviction could enable the Senate to bar Trump from holding office again — and Mcconnell didn’t ever want Trump in office again.
But in all his years as GOP leader, Mcconnell had never led such a rebellion. And that day, he wasn’t sure he was up to the task.
Mounted on the office wall above Mcconnell’s head was a framed portrait of his mentor, the late Kentucky senator John Sherman Cooper, for whom he had interned in the summer of 1964. Cooper, a Republican, had helped pass the Civil Rights Act despite a flood of angry pro-segregationist letters he’d received from his constituents. The 20-something McConnell had once asked Cooper how he squared his vote with what his constituents wanted.
“There are times you follow, and times when you lead,” Cooper had told him, an adage that stuck with Mcconnell decades later.
Was this Mcconnell’s own moment to lead? And if he did, would enough Republicans follow him to make it worthwhile?
Mcconnell was still shaken by the siege of the Capitol. The night of the riot, when he returned to the building from Fort Mcnair, he had seen the splintered wood in the door to his Capitol suite left by marauders who had tried to break into his office and attack his staff. He had watched, stunned, as his aides moved furniture they had used to barricade the entrance out of the way to make room for his return. Overcome with emotion at the trauma they’d experienced, Mcconnell had made a vow to his aides.
“We’ve all known that Trump is crazy,” he had said. “I’m done with him. I will never speak to him again.”
For a while, it looked like McConnell’s confidence was well placed. In the immediate aftermath of Jan. 6, Republicans across the political spectrum had turned on Trump, calling on him to resign. The day after the riot, Mcconnell’s wife, Elaine Chao, resigned her position as secretary of Transportation, prompting other Cabinet members to follow. The exodus was so great, in fact, that Mcconnell began fearing that Trump, left unfettered, might start to act upon his worst instincts. He personally urged top Trump officials like White House counsel Pat Cipollone and national security adviser Robert O’brien to serve out their terms, looking to them to restrain the president who had already proved himself a threat to the nation.
Mcconnell was stunned at the speed with which that powerful anti-trump sentiment had faded by the time the House voted to impeach, an indictment supported by just ten Republicans. It was clear that many of his members still feared that the outgoing president and his loyal base would come after them if they broke with Trump. In the days after the riot, as anger at Trump gave way to panic that blaming him could cost lawmakers their jobs, a large crop of rank-and-file Senate Republicans also began frantically searching for an escape hatch — a way to vote against impeachment without defending what Trump had done.
Those senators had found salvation in a Jan. 12 Washington Post op-ed written by well-known conservative attorney J. Michael Luttig, who had served as a U.S. Court of Appeals judge for fifteen years. In it, Luttig argued it was unconstitutional to impeach a former president — or for the Senate to conduct a trial against an ex-president who had been impeached while in office. The next morning, as the House prepared to impeach Trump again, Arkansas Sen. Tom Cotton sent the piece around to his colleagues. Soon, Trump’s most hardcore defenders became obsessed with the idea, pressing other senators to embrace the argument as a reason to oppose removal.
Mcconnell himself wasn’t convinced by Luttig’s logic — and he knew some of his GOP colleagues weren’t either. The argument seemed to him a “procedural offramp.” And Mcconnell was not yet sure he wanted one.
In a series of meetings, Mcconnell and a host of skeptical GOP senators debated the merits of a similar argument with his trusted legal adviser from the first impeachment, Andrew Ferguson. Ferguson, who had barely escaped the rioters as they tore into the Capitol on Jan. 6, had wrestled with the subject for days and concluded that the Founders conceived of impeachment only as a means of removing people still in office. He pointed out that Benjamin Franklin once argued that impeachment was a necessary constitutional escape hatch for removing a tyrant because the only other recourse was assassination — and no one wanted that. Since there was simply no way the Senate could convene and speed through a trial in the days remaining before Biden’s inauguration, Trump could not be subject to conviction, Ferguson advised his boss and the members.
Mcconnell, still skeptical, challenged his counsel: Why would the Founders have given Congress the absolute power of impeachment in the Constitution if it was limited? he wanted to know. Why would the Founders include a provision in the Constitution to bar someone from running for office ever again — only to limit a conviction to current officeholders?
Ferguson acknowledged it was a tough question. But if Mcconnell’s endgame was to keep Trump from running for office again, Ferguson warned, a Senate conviction was no guarantee of that goal. Some scholars believed that the Constitution did not actually permit an impeached president to be disqualified from holding office again, as it did judges and other public officials, he explained to Mcconnell and other GOP members considering conviction. It was a minority view that few constitutional experts agreed with, Ferguson acknowledged, noting he personally didn’t accept it either. But it didn’t matter: Trump could try to run again in 2024 and sue any state that kept him off the ballot, he said. It would turn into an explosive legal battle that would catapult the ex-president back into the headlines, possibly resurrecting his efforts to stage a political comeback, right when the party was trying to heal.
“Barring him from office wouldn’t be a slam dunk,” Ferguson warned.
As Mcconnell pondered what to do, he entertained other arguments for and against conviction from various corners of the GOP. Rep. Liz Cheney (R-wyo.) made a personal appeal to Mcconnell to use his leadership position to step out against the president to give his rank-and-file Republicans political cover to do the same. She pressed him in a series of phone calls to bring the Senate back from a congressional recess before the Biden inauguration and quickly convict Trump before he left office. Republicans would follow his lead, she insisted to McConnell. And besides, Trump still posed an ongoing threat to the country.
Mcconnell told Cheney he did not disagree on her last point, though he was adamant that logistically the Senate could not convict Trump in a week. In his view, Trump deserved the right to find counsel and prepare a defense no matter how guilty he was. But Mcconnell also acknowledged another fear to Cheney that had started to creep into his psyche: that conviction might make Trump a martyr in the eyes of his followers, empowering him in the long run. That might pose even more of a threat to the Republican Party, he feared.
“We don’t disagree on the substance; we just disagree on the tactics,” Mcconnell told Cheney as they conferred about how to free the GOP from Trump’s iron grip. “Let’s just ignore him.”
Meanwhile, Sen. Lindsey O. Graham (R-S.C.), the longtime ally whom he had leaned on for legal advice during the first impeachment, was trying mightily to get Mcconnell right with Trump. He popped into the leader’s office at least twice that month to argue that conviction was out of the question. The GOP would be legitimizing a snap impeachment with no due process for the president. And besides, he said, Trump was not guilty of incitement.
“What he said — it’s political speech! The MOST protected form of speech,” Graham firmly told Mcconnell. “If you’re going to start holding politicians accountable based on the actions of others — from a speech? That’s a dangerous place to go.”
Mcconnell, still considering his options, said nothing in response.
The way Graham had rationalized Trump’s actions since Jan. 6 had been particularly craven — and a perfect example of how Mcconnell was quickly losing his members to Trump. The night of the riot, Graham had declared in an emotional speech that he and the president were through.
“Trump and I, we had a hell of a journey,” he had said on the Senate floor, his voice catching. “I hate it being this way. Oh my God I hate it … but today all I can say is count me out. Enough is enough.”
Two days later, Trump supporters had harassed Graham as he walked through Reagan National Airport, calling him a “traitor.” Graham’s resolve crumbled almost immediately. By the time the House was voting to impeach the following week, he had resumed his position as captain of the president’s cheering squad. He even found Trump an impeachment trial lawyer when no one else would step forward to defend him.
In some ways, Mcconnell’s passivity had enabled such whiplash. Like Graham, many Senate Republicans who experienced a flash of conscience and self-reflection in the wake of the riot had it quickly beaten out of them by Trump’s base. Many of those senators were looking to Mcconnell for a smoke signal on what they should do, but the Senate GOP leader kept his cards close to the chest.
Mcconnell did drop occasional hints of his fury with the president, hoping to give others the courage to take the principled stand he still wasn’t sure he wanted to take himself. In private conversations, he made clear he thought Trump had committed impeachable offenses. The day after Luttig’s argument made a splash with his members, Mcconnell penned a letter to his colleagues saying he was open to voting to convict — an enormous turnaround for a leader who had declared during Trump’s first impeachment that he was “in total coordination” with the president’s defense team. And when it came to the facts of what had happened on Jan. 6, Mcconnell didn’t mince words; he put the blame squarely on the ex-president’s shoulders.
“The mob was fed lies,” Mcconnell said on the Senate floor on Jan. 19. “They were provoked by the president.”
But Mcconnell stopped short of perhaps the one thing that may have made a difference: He never actually encouraged his colleagues to convict. Instead, he told them the verdict would be a “vote of conscience.” And while some senior Senate Republicans privately predicted in mid-january that double digits of their ranks would be willing to convict Trump — if not the full seventeen that would have been necessary to bar him from serving in office again — Mcconnell never did a whip check.
Instead, as the trial neared, Trump’s defenders quickly filled the void — in part by trying to pressure Mcconnell back in line with Trump. A week after the impeachment vote, on the day of Biden’s inauguration, a group of them told CNN that if Mcconnell voted to convict Trump, he could no longer be leader — a very public warning that the Kentuckian needed to check himself. Even Graham argued the party needed Trump to win back the Senate — despite evidence that Trump had just cost the party two Senate seats in Georgia.
On a conference call with the GOP senators that week, Mcconnell listened as a group of Trump allies pressed him to find a way to avoid a second impeachment trial — and to do more to defend the ex-president. Couldn’t he get the Supreme Court to throw out the charges, they asked. After all, Trump was not president anymore. Why go through this at all?
A year before, Mcconnell had used his position to secure the most advantageous conditions possible for the president at trial, assuring his acquittal almost single-handedly. But this time, he refused to intervene. Even when Sen. Kevin Cramer (R-N.D.) warned Mcconnell on the call that some of the GOP’S biggestname donors wanted to see a more robust effort to exonerate the ex-president, Mcconnell remained unmoved. He had defended Trump for too long. Others could do as they wanted, but as far as he was concerned, this time the former president was on his own.
If you have ideas about defending Trump, talk to Graham, he told the senators during the call.
Over the next few days, as an increasing number of GOP senators coalesced around the argument that a post-presidential impeachment was unconstitutional, Mcconnell made one last attempt to change their minds. He asked his leadership team to invite wellrespected Republican legal experts to advocate both for and against the constitutionality argument so his members could hear both sides. Sen. Roy Blunt of Missouri, who oversaw the GOP Senate lunches, agreed. To kick things off, he invited Jonathan Turley — the constitutional lawyer Jerry Nadler’s attorneys had mocked as a “rent-a-quote” machine during the first impeachment — to lay out the anti-impeachment position at a Jan. 26 luncheon. They’d settle on a proimpeachment GOP scholar later.
But the night before Turley’s session, Paul cornered Mcconnell’s staff in the cloakroom and demanded an immediate vote on the constitutionality of the looming trial. If Mcconnell didn’t schedule such a vote himself, Paul insisted he would force the issue. And he would do it the next day, right after the luncheon.
Mcconnell knew the vote was sure to fail, but that wasn’t the problem. The issue was that it would compel every senator to preemptively declare on the record whether they thought convicting Trump was constitutional — including Mcconnell, who was still at war with himself over that very question. Much to Mcconnell’s chagrin, it also would require his members to take a position without having heard any prominent GOP scholar argue why it might, in fact, be constitutional to convict an ex-president, as he had originally wanted.
As lawmakers left the Turley lunch the next day and headed to the chamber for the snap vote Paul had demanded, Mcconnell retreated to his office for a private moment. On the floor, several GOP senators who had just sat through arguments about why they must acquit Trump still weren’t sure if they agreed and started buttonholing Mcconnell’s staff.
“How’s he voting?” they asked over and over, eager for guidance — and to know if they’d have political cover to vote that the trial was constitutional. “How’s he voting?”
Mcconnell’s aides confessed to the senators that they had no idea what their boss would do.
In his memoir, Mcconnell had written that a “true leader is one who doesn’t take a poll on every issue.” Cooper, his mentor, had been a shining example of leading with conviction where there was a clear right and wrong. But that day, Mcconnell decided to neither lead nor follow, leaving his members without the guidance and protection they needed to take a very politically risky position. He walked to the floor and voted with the bulk of the GOP to declare the trial was unconstitutional, an argument he wasn’t even sure he agreed with. If McConnell was going to break with Trump on impeachment, it would have to happen another day.