The Washington PostDemocracy Dies in Darkness

Opinion Prosecuting Trump is more essential than ever

House Clerk Cheryl Johnson and House acting sergeant-at-arms Timothy P. Blodgett lead the Democratic House impeachment managers as they deliver the article of impeachment against former president Donald Trump to the Senate on Jan. 25. (Susan Walsh/AP)

The Senate vote showing 45 Republican senators willing to brush off the impeachment trial makes it more imperative than ever to have a criminal trial on the merits in a setting where evidence can be taken seriously and spurious objections dismissed.

Adding to the urgency of a criminal proceeding is former president Donald Trump’s decision to sack most of his legal team, headed by Karl S. “Butch” Bowers, with just a little more than a week before his Senate trial. It’s unclear why they are parting ways, but the New York Times reports that it might be because Bowers and his associates would not propound the false and dangerous argument that the election was stolen. (That would be a major incentive for sane Republicans to convict Trump, if only to clear the record of the legitimacy of the election outcome.) The New York Times reports:

Mr. Trump had pushed for his defense team to focus on his baseless claim that the election was stolen from him, one person familiar with the situation said. A person close to Mr. Trump disputed that that was the case but acknowledged that there were differences in opinion about the defense strategy. However, Mr. Trump has insisted that the case is “simple” and has told advisers he could argue it himself and save the money on lawyers. (Aides contend he is not seriously contemplating doing so.)
The decision for Mr. Bowers to leave was “mutual,” another person familiar with the situation said, adding that Mr. Trump and Mr. Bowers had no chemistry, a quality the former president generally prizes in his relationships. Mr. Trump prefers lawyers who are eager to appear on television to say that he never did anything wrong; Mr. Bowers has been noticeably absent in the news media since his hiring was announced.

It seems there is at least one lawyer who takes his professional obligations seriously enough not to bamboozle the Senate and the American people.

It is far from clear what the disgraced ex-president will do now. He could send in the remainder of his team. He could simply submit a brief. He might even refuse to defend himself and rely on spineless Republicans to acquit him based on a specious constitutional argument. In none of these scenarios, however, can we expect a sober, informative trial on the merits.

A criminal trial, both on the former president’s attempt to strong-arm Georgia election officials to change the state’s vote totals and his incitement before the Jan. 6 violent insurrection (coupled with his refusal to immediately and definitively call a halt to the uprising), would serve multiple purposes. If the Senate will not ban him from holding office, a criminal conviction — should Trump be found guilty — would almost certainly do the trick (or at least, we should hope it would in the era of right-wing conspiracy theories).

Former acting solicitor general Neal Katyal tells me, “If Senate Republicans really want to say — against the constitutional text and history — that a former official cannot be barred from future officeholding — then that just makes the criminal prosecution of Donald Trump a necessity for his actions.” He adds that “it can’t be that Donald Trump a) can’t be impeached for Ukraine because America should wait for the election; b) can’t be impeached for January 6 because he will soon be out of office; and c) cannot be prosecuted while he’s a sitting president; and d) cannot be prosecuted afterwards for his actions while president. At some point, Trump has to face a real tribunal.”

In addition, a criminal trial could provide a severe deterrent for future presidents who attempt to retain power through violence. It is not enough to mouth the empty platitude that the ex-president’s behavior was “unacceptable” if there are no adverse consequences. Without punishment, his failed coup would remain an open invitation to future presidents to try the same sort of power grab. Constitutional scholar Laurence Tribe observes, “Impeachment is about getting rid of officeholders who endanger the republic by abusing their powers, not about punishing them for their crimes. Punishment still must be meted out if the rule of law is to be respected and wrongdoers are to be held accountable.”

Moreover, as long as the hardcore MAGA crowd keeps repeating the Big Lie that the election was stolen, the need for a full factual airing of the white supremacist plot and the ex-president’s own attempt to induce Georgia to commit voter fraud remains. “If Trump is still maintaining the big lie after January 6, knowing his words have the power to incite violence, then it seems to me it’s potentially indicative of both his intent on the 6th and continued intent to engage in sedition,” says former prosecutor Joyce White Vance. “It’s certainly an interesting piece of evidence for prosecutors to have.” Public education about any law enforcement officials’ or legislators’ role in the seditious plot and the effect Trump’s words had on the mob is essential if we are going to ever return to a fact-based democracy.

Let’s get real: The only one trying to cheat or rig the election was the former president. This includes his efforts to discredit mail-in voting, to hobble the U.S. Postal Service, to threaten Georgia Secretary of State Brad Raffensperger, to pressure Michigan canvassing officials into rejecting the election results and to call on rioters to march on the Capitol. The nonstop antics were designed to mislead voters, attack the legitimacy of his successor and, somehow, force a change in the electoral college vote. However insane the conduct, there is plenty of evidence that the president attempted to subvert the election. We need a full, transparent adjudication of precisely those sets of facts.

Read more:

Jennifer Rubin: On impeachment, Republican senators are as spineless as ever

The Post’s View: Yes, ex-presidents can be impeached

George F. Will: It still doesn’t make sense to impeach and convict Donald Trump

Philip Bobbitt and Richard Danzig: Is impeachment the right instrument to punish Donald Trump?

J. Michael Luttig: Once Trump leaves office, the Senate can’t hold an impeachment trial