No question that Trump’s January 6, speech as well as other lies instigated the storming of the Capitol. No question this was wrong. No question that were he still in office he would have deserved to be impeached and convicted. No question that trying after he has left office is constitutional. Nonetheless, the Democrats should not have impeached him.
Had a private person done what Donald Trump did on January 6, he would be criminally liable for inciting a riot or advocating destruction of government property. This was not protected free speech. Under the Supreme Court’s Brandenburg v. Ohio test for what is protected speech, language which advocates imminent lawlessness is not guaranteed by the First Amendment. But even if it were protected free speech, Donald Trump at the time was no ordinary citizen–he was the president of the United States, and a higher code of conduct governs his behavior. His duties under Article II of the Constitution to “take care that the laws be faithfully executed,” or his oath of office charging him to “preserve, protect, and defend the Constitution” make what he did wrong.
Impeachment would be the remedy were he still in office. One can be impeached for “treason, bribery, or high crimes and misdemeanors.” Treason is defined as waging war against the United States. Declaring elections to be stolen when they were not and advocating the use of violence to overturn them certainly sounds like treason. But if not, they certainly constitute a high crime and misdemeanor, which the constitutional framers understood to mean non or malfeasance or simply the inability to perform one’s expected duties. All that fits Donald Trump.
Were he still if office impeachment and conviction would be warranted. Constitutional framers such as Benjamin Franklin talked at the constitutional convention of the need of impeachment to check presidents while in office since it would be unlikely or hard to criminally indict them. The remedy here would be removal from office. But what to do with an ex-president–can he still be impeached and convicted? Constitutional text does not explicitly preclude it, historical precedent from 1876 when the Senate tried a cabinet official after he resigned, and Supreme Court decisions saying that matters of impeachment and trial are the sole prerogative of Congress all suggest it is allowed, or at least it will not be prevented if challenged in court. Thus, Rand Paul’s resolution declaring the trial unconstitutional is practically meaningless given Democratic control of the Senate.
But while all the above is true, political reality makes this coming trial a farce. The Democrats will not get a conviction. In their defense, Democrats will argue what the president did was bad and that he needs to be punished. That even if not convicted he goes down as the only president twice impeached. Perhaps also implicitly Democrats are doing this to put pressure on Republicans, to split the party, to appease their angry base that hate Trump, or perhaps to gain 2022 political advantage. Yet none of this justifies impeachment and trial.
Trump has disappeared from the horizon since January 20. A trial gives him a forum again. An acquittal gives him vindication. A trial splits moderate Republicans from the rest of the party, doing little to moderate in control of the Trump faction. Democrats get no more satisfaction out of this than the person in anger who kicks and breaks something and for a second feels good until realizing the more lasting damage done.
Democrats would have been better censuring the president. This is not a better option because perhaps some Republicans might have joined in. But because it would have denied Trump a chance to respond or vindicate himself. This censure, his election loss, and the events of January 6, as well as his entire presidency would have served a greater lesson in history to and for him and others than a failed conviction will yield.
But also, the problem here is that the trial is a sideshow or distraction. It will give Democrats a justification for their failure to enact meaningful policy. We need to address a health care crisis. There are enormous racial problems in America. The gap between the rich and poor is at record levels. Climate change is an existential threat. Mainstream Democrats have no viable path to address these issues (not that the Republicans do either). But impeachment and a failed trial says getting Trump is more important than these issues. It provides cover for Democrats when they say they wanted to do something but the Republicans blocked it. It allows them to say that the neo-liberal policies they have pushed since Bill Clinton and which will be what they are advocating now are the best they can do given the Republican opposition in Congress and nationally.
A failed Senate trial does not save any lives from hunger, prevent another George Floyd, or distribute vaccines to save lives. The best way to get even with Trump would be with good and effective public policy not only to reverse his legacy but carve a new path for the Democrats that would achieve meaningful change. The coming Senate trial simply is a diversion–bread and circuses for the masses–and not a substitute for meaningful legislative and policy change.