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Dems need to establish that the constitutionality of this impeachment is now the “law of the case.”

2 min read

Trump’s lawyers argued that the Senate lacked jurisdiction to try the impeachment of a former president, and today that argument failed by a 56-44 vote.  The issue was resolved: the Senate has jurisdiction to try and convict Trump.

A question: isn’t this now the “law of the case,” and, thus, a Senate juror following his oath cannot cite this argument as a basis for voting to acquit Trump?

I ask this because most reporting characterizes it the opposite way: “Senate Agrees Trial Is Constitutional, as Trump Consolidates Votes for an Acquittal.  In other words, the 44 losing votes to dismiss the case on this jurisdictional ground indicates that the votes are not there to convict . . . on the very basis which lost?

OK, I get the practical considerations behind this, but why do all of us always buy into Republicans’ framing?  This legal defense was raised and defeated. It was a Democratic victory.  It should be gone from the trial, no?  Shouldn’t the proper reporting and House Manager argument be:  “Republicans need a new reason to acquit Trump.  Republican Senators can no longer cite the constitutional/jurisdiction argument, and have to find and articulate a defense on the merits.”  You know, “this trial just changed, big time.”

In short, a juror can not ignore the law, and this is now the law-of-the-case.  Ironically (or unsurprisingly?), a Senate juror who based an acquittal vote on the constitutional/jurisdiction argument would be committing Confederate-style nullification. Shouldn’t that be made plain and called out?  Isn’t that a required part of advocacy?

The practical question, of course, is how to introduce this notion. The first and obvious answer is to sprinkle it throughout the impeachment arguments going forward and have the surrogates saying the same on Cable TV and print.

A more aggressive move would be to make a formal motion that any Senator who cannot commit to dropping this argument needs to recuse himself or herself as a juror going forward.  No Republican Senator would recuse, but it would effectively foreclose the subsequent PR arguments (and excuses).

This is what litigation (and high politics) is about: you capitalize on your victories and limit your opponent’s options.  Then you try to do that again and again.

So far, inexplicably, I am not seeing that here.  Hopefully though that changes tomorrow.

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