We keep hearing that Democrats are worried that a Senate trial for President Donald Trump will have all sorts of ill effects: It will take too much time, distract from President Biden’s agenda and persuade the public that Democrats are still trapped in litigating the past presidency.
This would solve all their problems at once: It would allow for plenty of time to do the trial right. It would let the Senate proceed simultaneously with legislative business. And it would show that Democrats are not consumed with the trial in any meaningful sense.
There’s precedent for this approach. Thomas Porteous, a federal judge in New Orleans, was convicted by the Senate after it did much of its 2010 trial work in a committee setting.
The committee issued a report documenting this trial work. As the report noted, the Senate established this committee under the chamber’s rules, “to receive and to report evidence” with respect to the House’s impeachment of him. The report also outlined the precedent for this.
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In other words, most of the work of interviewing witnesses and hearing the presentation against him was done by a committee and not by the full Senate. In the end, in keeping with the resolution setting up the committee, the report was presented to the Senate.
“There’s enough Senate precedent for holding significant portions of trials before a committee,” Josh Chafetz, a professor at Georgetown Law and author of a book about the hidden functions of Congress, told me. “I don’t see any reason that the impeachment of a former president would be different.”
John Dean of Watergate renown added that a full accounting is necessary to establish what Trump knew and when about the planning of the assault, and what his true intentions were in fomenting it.
“There’s a procedure that sets this up perfectly, and that’s an impeachment committee,” Dean told me. “You can have those hearings in public. You can take television cameras in there. You can call witnesses. You can educate the American public.”
Dean noted that this would allow the Democratic legislative agenda to proceed in the Senate at the same time, while taking “the time to develop a record of one of history’s great travesties.”
It’s probably the case that Democrats don’t need to fear the political ramifications of a trial, as Paul Waldman and I have argued.
But whatever their fears, the insurrectionist assault on the Capitol — which Trump incited, leading to his impeachment — was a major event in U.S. history. Given its obvious importance, rushing the trial, as some Democrats have suggested, would simply be absurd.
A serious accounting is not only called for given the weight of the event, but also because there are lots of unanswered questions remaining about it. There’s a lot we don’t know about Trump’s own conduct during the assault and about the possible involvement of others, such as congressional Republicans who encouraged the “Stop the Steal” movement, which culminated in the attack.
A serious committee examination of this event would allow for the proper creation of a full accounting. A committee could take witness testimony and examine the event from every angle in great detail without requiring the full Senate to preside.
And it could free up the trial to take its time without anyone being able to claim (in good faith, anyway) that it’s distracting the Senate from the nation’s business.
Chafetz points out that if anything, the risk might be in the other direction: To some, it might appear to be treating the event less seriously than a full trial would, though in reality it wouldn’t be. A Senate committee could take the time necessary to create a record of a major event in the history of our democracy, without any of the downsides Democrats seem to fear.
A committee could appear “to some part of the public that they’re not taking it entirely seriously,” Chafetz told me. “But that might be counterbalanced both by how thorough the inquiry can be and also what it frees the rest of the Senate to do in the meantime.”
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