Jim Jones

Jim Jones

It was shocking, but not surprising, that the Senate failed to find Donald Trump guilty for inciting the Jan. 6 riot at the U.S. Capitol. The shocking part is that 43 Republican senators voted no, despite the fact that the House impeachment managers fully proved their case. The unsurprising part is that those 43 senators let cowardice prevail over their sworn duty to uphold the law.

Sen. Mitch McConnell typified the lily-livered GOP dodge. He first cast a no vote, but then proclaimed, “There’s no question — none — that President Trump is practically and morally responsible for provoking” the attack. He went on to say that Trump’s supporters launched the attack “because they had been fed wild falsehoods by the most powerful man on Earth because he was angry he lost an election.” That obviously meant Trump was guilty in McConnell’s mind, but his mind apparently works in mysterious ways. He stuck with his no vote based on the fiction that a person no longer in office can’t be impeached. He conveniently forgot that it was he who had refused to allow an impeachment trial in the Senate while Trump was still in office.

Idaho’s two senators also cast no votes, claiming a president cannot be impeached if he is not presently in office. They apparently concluded that Trump had absolutely no legitimate claim to the presidency and, therefore, could not be impeached.

In doing so, Sens. Mike Crapo and Jim Risch rejected the language of the U.S. Constitution, which the vast majority of legal scholars have interpreted as allowing Trump’s impeachment. They also ignored the previous 56-44 Senate vote affirming that a former president is subject to impeachment.

I have known both of these lawyer-senators for decades and thought they understood the law reasonably well. It now appears I was wrong. Impeachment was an easy call but they both got it wrong. Or their votes could simply have been motivated by a weak-kneed fear of Trump.

Sen. McConnell then suggested that Trump might be held to account under criminal statutes, “The Constitution makes perfectly clear that presidential criminal misconduct while in office can be prosecuted after the president has left office.”

McConnell’s statement jogged my memory about a case I handled for Evel Knievel way back in the late 1970s. It was not a criminal case. Rather, it dealt with the issue of civil liability for gathering together a group of potentially unruly people, who then get out of hand. After Knievel fumbled his jump attempt, the assembled crowd grew increasingly agitated. They rioted that evening, destroying the concession stands at the jump site. Several concessionaires sued Evel for the damages caused by the riotous crowd. In the two decisions issued by the Idaho Supreme Court in the case (100 Idaho 883 and 102 Idaho 138), there was no ruling that Evel could be held liable for the damages, but neither was that possibility foreclosed.

One recent article on the Capitol riot speculated that the federal government and private parties, such as the injured police officers, might be able to sue Trump for damages. Another pointed to statutes in the District of Columbia that might provide grounds for seeking recovery of damages. So, even though Trump escaped an impeachment conviction, it is possible he could be held to account for monetary damages through the civil justice system. Certainly some food for thought for an enterprising attorney.

Jim Jones served as an Army artillery officer in Vietnam from 1968 to 1969 and received an Army Commendation Medal for his work with an orphanage there. He served for eight years as Idaho Attorney General and was a justice on the Idaho Supreme Court for 12 years. He currently resides in Boise.