Mitch McConnell's Vote That Donald Trump Trial Is Unconstitutional Contradicts Own Memo

Senate Minority Leader Mitch McConnell (R-KY) voted on Tuesday to declare former President Donald Trump's upcoming impeachment trial in the Senate unconstitutional.

He was one of 44 Republican senators who voted to dismiss the trial, while six Republicans crossed the aisle and voted with the Democrats affirming that the process was allowed by the Constitution.

However, McConnell's vote appears to contradict a memo he circulated to his GOP colleagues in early January outlining how an impeachment trial might take place in the days after Trump had left office.

In the memo, obtained by The Washington Post on January 9, McConnell said that the earliest a trial could take place was January 19—the day before President Joe Biden was due to take the oath of office.

Importantly, the memo also stated that the Senate trial could be scheduled for after Trump had left the White House.

The Senate would have had to consider any articles of impeachment submitted by the House of Representatives on January 19 or 20, the memo noted.

"The Senate impeachment rules provide that at 1pm the day after the [House Impeachment] Managers exhibit the articles before the Senate, the Senate must proceed to their consideration," McConnell's memo said.

"The Senate trial would therefore begin after President Trump's term has expired — either one hour after its expiration on January 20, or twenty-five hours after its expiration on January 21."

This acknowledgement that an impeachment trial can take place after a president has left office appears to undercut Republican complaints that trying Trump is unconstitutional because he is now a private citizen.

The trial could not have taken place earlier than January 19 without the unanimous consent of all 100 senators, which was unlikely. The House delivered the single article of impeachment to the Senate on January 25. The unprecedented second impeachment trial began this week.

Colorado State Representative Steven Woodrow, a Democrat, pointed out this apparent contradiction on Twitter on Tuesday.

"I know we're all suffering from information overload, but @LeaderMcConnell said a month ago that the earliest an #ImpeachmentTrial could start would be Jan. 19th," Woodrow wrote.

"So according to him there was a 24 hour Constitutional 'impeachment window.'"

An impeachment trial can be a long process, especially if witnesses are called, so it's unlikely the trial could take place in a 24-hour period. McConnell's memo acknowledged that a trial would mean the Senate staying in session "until a final judgement shall be rendered."

On Tuesday, the six GOP senators who voted to proceed with the trial explained their decision. Alaska Senator Lisa Murkowski warned that dismissing the trial could set an unwelcome precedent.

"The vote today was not about President Trump. It was about the Senate retaining jurisdiction to try a former official who was impeached while in office for acts done while in office," Murkowski said.

"The Senate should not be so quick to forever give away its power to take corrective actions that may, at some point, be necessary."

Senate Minority Leader Mitch McConnell has been asked for comment on this article.

Senate Minority Leader Mitch McConnell
Senate Minority Leader Mitch McConnell (R-KY) leaves his office and walks to the Senate floor at the U.S. Capitol on February 8, 2021 in Washington, DC. McConnell voted against proceeding with the impeachment trial on Tuesday. Drew Angerer/Getty Images