There will be a Senate trial of Donald Trump after he is no longer in office. Because the impeachment process is designed as a mode of high politics to remove a president who abuses his office and the public trust, and if convicted, he would still be subject to criminal prosecution if warranted, many citizens will wonder: why have a Senate trial to remove him from an office he no longer holds?
There are several reasons.
- The trial will be the opening exercise in a national Reckoning designed to diagnose the damage that Trump and Trump enablers did to the constitutional order. Despite the fact that many observers of politics understood the problems Trump posed from before he was elected in 2016, he maintained a high level of support until the insurrection. Like the insurrection itself, the trial is an occasion for the America to wake up and smell the coffee — to finally absorb what has been culturally concealed by Trump’s instinctively skillful use of Orwellian techniques of repetition lies, proliferation of outrageous statements and actions, and projection of his vices onto his foes. Perhaps the greatest of these is the Big Lie that the election was stolen. His success in convincing so many Americans of this lie will be dissected and in doing so we have an opportunity to begin a process of constitutional renewal.
- A Senate trial and conviction is necessary to deny the ex-president the ability to run again for any federal office. However, if convicted it remains an open question and one worth thinking through as a matter of constitutional law and political prudence whether the Senate could also bar the president for campaigning on behalf of other candidates who might carry the banner of Trump-ism on his behalf.
- A Senate trial and conviction would be necessary to deny Trump the perquisites of office, including his pension, the franking privilege, and a budget for an office and post presidency staff. As Senator Angus King, has argued, this former president should be denied the courtesy of any future intelligence briefings, so that he will not be able to intentionally or unintentionally reveal protected intelligence.
- A Senate trial and conviction could be the occasion to make clear that statutes permitting the National Archives to deposit Trump administration papers in a privately funded presidential library could be denied to Donald Trump. In my view, the National Archives, with congressionally appropriated money, should take full custody of all the records of the Trump administration, making them available to congressional investigations immediately, and to scholars and journalists as soon as possible and consistent with national security practices.
- A Senate trial and conviction could be the occasion to solidify a congressional resolution that no federal honors ever be conferred on Donald Trump, including medals and awards from federally funded organizations and the naming of any federal facilities or the building of any monuments with federal funds.
- A Senate trial and conviction could be the occasion to begin a discussion of a new kind of federal museum, an insurrection museum, as part of the Smithsonian and designed to preserve the history of the episode and what led to it, for civic education.
- The one perquisite of office that I would extend to this disgraced ex-president, though very expensive, is secret service protection. It is in the national interest to maintain Donald Trump’s physical security and foreclose the possibility of martyrdom.