Why Senate action wasn't a total acquittal

David Halperin, Republic Report - (1) First, under federal law and the law of every state but one, the jury in a criminal case does not reach a verdict — guilty or not guilty — unless its vote is unanimous. Had Trump faced a criminal trial in court, instead of a trial in the Senate, a divided vote would not be called an acquittal. It would be called a hung jury, and the government could try the case again.

Because the Constitution requires a two-thirds vote of the Senate for conviction, yesterday’s Senate votes — 52-48 against the abuse of power count and 53-47 against the count of obstruction of Congress — were each deemed an acquittal. But Trump would have been considered acquitted even if the vote had been 66-34 in favor of convicting him.

Considered in that context, a final vote in which nearly half of the senators voted to convict cannot legitimately be called a “total acquittal.”

(2) Second, under the Constitution, the Senate cannot separate the judgment of guilt from the penalty of removal from office, and some Republican senators seemed to lean heavily on that reality in explaining their votes to acquit.

Article II, section 4 of the Constitution provides that the president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” There is only one Senate vote, up or down, and they must remove the president from office if they convict. By comparison, in a criminal trial in court, the judge normally instructs the jury not to consider the possible penalty in deciding whether the defendant is guilty or not guilty; the sentence is determined by the judge, or sometimes the jury, in a separate process only if the defendant is convicted.

Several Republican senators sharply condemned Trump’s actions, but suggested they were deterred from voting to convict because of the automatic penalty of removal.