On Tuesday, the U.S. Senate voted on the constitutional question of whether an impeachment trial may be held for Donald Trump now that he is out of office. Six Republicans joined all 50 Democrats in answering that question in the affirmative. Texas senator Ted Cruz was one of the 44 Republicans who voted that former president Donald Trump is not “subject to a court of impeachment for acts committed while president,” but in an article on Fox News, Cruz argues that, in fact, the Constitution does give Congress the authority to impeach and convict a former president.
The constitutional question of whether a former president can be impeached or tried after he has left office is a close legal question. On balance, I believe that the better constitutional argument is that a former president can be impeached and tried—that is, that the Senate has jurisdiction to hold a trial.
However, nothing in the text of the Constitution requires the Senate to choose to exercise jurisdiction. In these particular circumstances, I believe the Senate should decline to exercise jurisdiction—and so I voted to dismiss this impeachment on jurisdictional grounds.
Cruz seems to have a very esoteric interpretation of the question before the Senate yesterday:
Importantly, there are two types of jurisdiction: mandatory and discretionary. With mandatory jurisdiction, the tribunal must hear the case; with discretionary jurisdiction, the tribunal can decide whether to exercise its legal authority to hear the case. For example, the vast majority of the Supreme Court’s caseload arises on discretionary jurisdiction—it has the authority to hear most cases, but it doesn’t have to do so.
And nothing in the Constitution makes the Senate’s impeachment jurisdiction mandatory. “Sole power” means “sole power”—the Senate can decide whether to hear the case.
The present impeachment is an exercise of partisan retribution, not a legitimate exercise of constitutional authority.
In other words, Cruz seems to have skipped to the conclusion of the impeachment trial. “On the merits, President Trump’s conduct does not come close to meeting the legal standard for incitement — the only charge brought against him,” Cruz writes. Having reached that conclusion before the impeachment trial began, Cruz works backward to argue that the trial is unconstitutional.
I’m unaware of any other Senate Republican who shares Cruz’s view of Tuesday’s vote on the constitutionality of the trial.