Today, Sen. Richard Burr joined six other Republicans in voting to convict President Trump of an impeachable offense. I understand the vote of the other six and consider it defensible, though not how I would have voted.
Unlike the other six, however, Burr previously voted that the trial should not proceed because it is unconstitutional to impeach a president who is no longer in office. But now, Burr has voted to do that unconstitutional thing.
Burr tried to explain away the contradiction this way:
When this process started, I believed that it was unconstitutional to impeach a president who was no longer in office. I still believe that to be the case. However, the Senate is an institution based on precedent, and given that the majority in the Senate voted to proceed with this trial, the question of constitutionality is now established precedent. As an impartial juror, my role is now to determine whether House managers have sufficiently made the case for the article of impeachment against President Trump.
This makes no sense to me. Burr has taken an oath to uphold the Constitution. If he still believes that it’s unconstitutional to impeach a president who is no longer in office, then Burr has violated that oath by voting to convict on the article of impeachment.
“Senate precedent” — the opinion of a majority of Senators — doesn’t determine what is and what is not constitutional. Every Senator is bound by an oath to exercise his or her independent judgment on questions of constitutionality.
The Senate passed Obamacare. Clearly, a majority thought it was constitutional. That vote would not bar Senators from voting to repeal Obamacare on constitutional grounds.
Senate worship is an occupational hazard, at least for Republican members. But for a Senator to allow a majority to substitute its judgment for his on a matter of constitutional law is carrying the joke too far.
Perhaps Burr was so moved by the House managers’ presentation that he felt compelled to vote to convict, notwithstanding his view of the Constitution. A vote on that basis would also violate his oath, obviously.
Burr has said he will retire at the end of 2022. That’s a good call. The reasoning behind his vote to convict Trump shows that he’s been in the Senate for too long.