In the eyes of history, Trump’s acquittal will convict those who failed to summon the courage to find him guilty. The dodge that the Senate lacks jurisdiction is just that — a dodge, a procedural escape hatch to avoid the politically perilous but morally essential duty to declare that Trump’s crusade to obstruct the peaceful transfer of power constituted the ultimate high crime.
The opening words of the House prosecutors’ brief underscore the gravity of the offense: “This trial arises from President Donald J. Trump’s incitement of insurrection against the Republic he swore to protect,” the nine House members write.
No one, Democrat or Republican, who believes in our constitutional democracy can justify Trump’s behavior. “Since the dawn of the Republic,” the prosecutors write, “no President had ever refused to accept an election result or defied the lawful processes for resolving electoral disputes.” Trump “spent months using his bully pulpit to insist that the Joint Session of Congress was the final act of a vast plot to destroy America.”
As Rep. Liz Cheney (R-Wyo.) bravely said, Trump “summoned this mob, assembled the mob, and lit the flame of this attack. Everything that followed was his doing. None of this would have happened without the President. The President could have immediately and forcefully intervened to stop the violence. He did not. There has never been a greater betrayal by a President of the United States of his office and his oath to the Constitution.”
Trump was appropriately impeached by the House for this great betrayal. It would be a second great betrayal for the Senate to fail to proceed.
First, the Senate has the power to do so even though Trump is no longer president. Trump’s lawyers, in papers filed Tuesday, describe the proceeding as “a legal nullity that runs patently contrary to the plain language of the Constitution.”
But as the House prosecutors argue, “Presidents do not get a free pass to commit high crimes and misdemeanors near the end of their term. . . . There is no ‘January Exception’ to impeachment or any other provision of the Constitution.” Indeed, one of the animating rationales for including an impeachment remedy in the Constitution was to guard against a president “who would abuse power to remain in office against the will of the electorate.”
The constitutional language is ambiguous at best: The Constitution provides that the remedy in cases of impeachment and conviction “shall not extend further than to removal from office and disqualification to hold and enjoy an office of honor.” Trump’s lawyers read the conjunction to mean that both steps must be available.
Others understand it differently. Stanford Law School professor Michael McConnell, a former federal appeals court judge appointed by President George W. Bush, argues that “the clause does not say that both sanctions are required; it says that the judgment may not go beyond imposition of both sanctions.”
In any event, McConnell notes, the Constitution grants the Senate power to try “all” impeachments: “Whether a former officer can be impeached is beside the point. Donald Trump was President of the United States at the time he was impeached by the House of Representatives. . . . Given that the impeachment of Mr. Trump was legitimate, the text makes clear that the Senate has power to try that impeachment.”
Second, the seriousness of the offense mandates that the Senate not merely drop the matter. What Trump did should be set out for all to see and judge — and for the senators to render their individual, recorded verdicts. More from the prosecutors: “Allowing Presidents to subvert elections without consequence would encourage the most dangerous of abuses.” Giving up without making this case would be dereliction of duty.
Yes, there are pitfalls. A trial will distract, somewhat, from the pursuit of President Biden’s agenda. It will inflame already-raw partisan differences without much hope of achieving the just result of preventing Trump from holding future office.
Acquittal, even if it is based on jurisdictional grounds, risks legitimizing Trump’s conduct, setting a precedent detrimental to the rule of law. Conviction, if it were somehow miraculously to occur, would risk turning him into a martyr, allowing him to claim that he was persecuted by political enemies even after he was out of office.
Dropping the matter would be worse. It would represent an enormous collective shrug at Trump’s abuses. “If provoking an insurrectionary riot against a Joint Session of Congress after losing an election is not an impeachable offense, it is hard to imagine what would be,” the House impeachment managers write.
If pursuing this offense to trial is not worth the Senate’s time, it is hard to imagine what would be.