Senators voted 48-52 on the abuse of power article of impeachment and 47-53 on the obstruction of justice article in Donald Trump’s impeachment proceedings. Following the impeachment votes, the words used to describe the outcome are vindication, acquittal, cleared of all charges and not guilty. One word you may not hear is mistrial. That’s exactly what occurred.
A mistrial occurs when neither side wins in a trial. It is also called a hung jury. As a trial attorney and former prosecutor, I can attest that neither side wants a mistrial. A mistrial can occur for several reasons. It happens where the jury cannot agree on a verdict. A mistrial also occurs where a trial is rendered invalid through an error in the proceedings. Through juror misconduct, a judge may also declare a mistrial.
A mistrial took place for several reasons in the impeachment proceeding. First, there was never a real trial. It defies reason to have a jury verdict when there is no real trial with sworn witnesses to testify about the president’s wrongdoings. Most Americans overwhelmingly wanted witnesses to testify under oath. In the two previous impeachment hearings with Presidents Bill Clinton in 1998 and Andrew Johnson in 1868, witnesses testified. This time no witnesses and Senate jurors walked in and out of the senate chamber during the sham process. And the essential element of a trial was missing; the element of fairness. Without a trial, there can be no acquittal.
Neither side won. All Democratic senators voted to convict. Republican House Majority Leader Mitch McConnell did not hold his troops together. Republican Senator Mitt Romney (R. UT) voted to convict Trump. Despite Romney’s previous 80% voting record with the president, he strayed this time. In doing so, Romney denied Donald Trump the shut-out win he wanted. Romney, as the sole Republican voting in support of removal from office, took away Trump’s opportunity to state that it was a complete partisan witch hunt. And for the first time in history, a senator of the same party as the president voted to convict on impeachment. Romney’s lone GOP vote to convict is not a win for Trump.
In instances where there is no criminal trial, a defendant cannot declare an acquittal. No one would say that Trump’s friend, Jeffrey Epstein, was not guilty of sex crimes. Epstein never had a trial. He died before a trial occurred. Trump also never had a true trial. Whatever occurred on the floor of the Senate was not an acquittal. It was a mistrial.
Of course, the real vote to acquit or convict Donald Trump will occur in November at the polls. It is up to the American people to testify by voting about who they want as president of the U.S.
Debbie Hines is a trial attorney practicing in Washington, D.C. and former Baltimore prosecutor.
Read also in The Hill: Please Stop Calling the Impeachment Proceeding a Trial; It’s a Charade