We can’t afford the luxury of ignoring him. Not yet. Not until he has been held accountable for his assault on the Constitution and the rule of law.
It’s easy to see the dodge coming; the White House has been scheming with Republican senators about how to make the trial go away. Arkansas Sen. Tom Cotton, who had the decency to oppose the attempt to overturn the election results, has said he would oppose a trial, arguing that the Constitution’s framers “designed the impeachment process as a way to remove officeholders from public office — not an inquest against private citizens.” Watch for others, including South Carolina Sen. Lindsey O. Graham, to seek to head the trial off at the pass, arguing that their jurisdiction over Trump ends with his term, at noon on Jan. 20.
Senators will parse constitutional clauses and cite impeachments of centuries past to make their case for or against a trial. Specifically, they will have to consider whether the Constitution’s statement that “judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” means that the impeached official must be in office at the time.
In truth, although I think the stronger arguments from language and history are on the side of the power to hold a trial, no one knows for sure. It is hard to imagine that the framers spent a second contemplating this strange situation. Which means that the Senate can try Trump if it so chooses; it can assert its own good-faith understanding of the Constitution and see if the Supreme Court interferes.
And the Senate should proceed against Trump, even as a former president. He would no longer be subject to removal, but conviction would allow him to be barred from future office. The availability of that sanction might be the best technical argument for the authority to try Trump, but there are stronger policy grounds for proceeding.
Trial by the Senate offers the best way to hold Trump fully accountable for his actions inciting the insurrection. Trump managed to dodge legal responsibility throughout his term because of the multiplicity of offramps available to an incumbent president, chief among them his assumed immunity from criminal prosecution.
Now, he might seek to grant himself a preemptive pardon. Even if he doesn’t, using the criminal law to go after Trump for the sacking of the Capitol is likely to prove difficult, if not impossible. A Senate trial on whether Trump committed a high crime or misdemeanor would not pose the same evidentiary hurdles. Trump doesn’t have to be found to have committed a crime, with all the attendant elements of intent and knowledge — just a grave offense against the Constitution.
Trial by the Senate offers the best way to hold senators themselves accountable, too. Mitch McConnell (R-Ky.), Senate majority leader for a few days more, has been skillful in shielding his members from having to take uncomfortable votes — from having to choose between following their consciences and protecting their president (and, with him, their own political backsides).
No more. Let them be forced to record whether they believe Trump’s relentless campaign to arouse his masses to contest the clear outcome of his election, his baseless assertion that his vice president should intervene at the 11th hour to overturn the certified results and his whipping up of the mob that stormed the Capitol were consistent with his constitutional duty.
The arguments against going forward with a trial are familiar. I have indulged in some version of them myself, in less extraordinary circumstances. It’s time to turn the page; better to look forward than back. The last thing the country needs at this point is more focus on Trump, another politically divisive spectacle in the form of a Senate trial. A trial, especially with the hurdle of two-thirds required for conviction, will end up hurting Joe Biden more than Trump; the infant administration needs the Senate to concentrate on confirming its nominees and moving its legislative agenda, not relitigating the horrors of the previous incumbent.
These are not frivolous, but they are not, on balance, persuasive. What Trump did is too serious to simply move on. A few weeks delaying in approving Cabinet secretaries, a few weeks more with Trump in the headlines, is a small price to pay for ensuring that Trump faces the ultimate judgment, indelibly etched in history. If Senate Republicans refuse to convict him, that stain, too, will be impossible to expunge.