Jeffrey C. Isaac is the James H. Rudy Professor in the Department of Political Science at Indiana University.
The best thing now is to let Trump leave the White House in disgrace, to do everything possible to put him out of the public mind, and to move forward politically with the business of Democratic governance and democratic citizenship.
I think I am against a Senate impeachment trial. I think I am. I’m not sure. I am sure about little these days. But I am pretty sure that a Senate trial is not a very good idea.
Of course Trump deserves conviction—and much worse. Of course Republican crocodile tears about “healing” should not be taken seriously. I simply doubt that there is much political upside to a Senate trial after January 20, and believe there are serious opportunity costs to such a trial. And on balance, the most effective way to “punish” Trump politically is to let him slink off to Mar-a-Lago in disgrace on the morning of January 20, and to deny him any further public attention whatsoever.
This will probably surprise anyone who knows me or has been following my anti-Trump writings these past years (in 2018 I even published a book entitled #AgainstTrump). Let me explain.
I was a very strong advocate of Trump’s impeachment in 2019 and 2020. But for me the question was always about the politics. I never thought that impeachment could end with Trump’s Senate conviction and removal from office. I thus never thought that narrowly legal concerns were the most important considerations. I always thought impeachment, obviously justified on the legal merits, was a way of potentially weakening Trump, exposing his many infringements and assaults on constitutional democracy, and mobilizing opposition to him and his party in the lead up to the 2020 Presidential election.
Defeating Trump in 2020 was always the most important political reason to impeach. Unfortunately, the Congressional Democratic leadership chose to pursue a much narrower and more legalistic impeachment. This failed, predictably, in the Senate, and it also failed politically, to such an extent that it was hardly ever mentioned in the 2020 Presidential campaign, and almost no Congressional Republicans who voted against Trump’s impeachment and conviction were punished at the ballot box.
Numerous House Democrats are now saying, again, that there must be a Senate trial because impeachment is “about law, not politics.” But this way of thinking was wrong before, and it is wrong now. Impeachment is not a strictly legal process. It is a political process, a means for Congress to hold a president accountable for “high crimes and misdemeanors.”
Trump is obviously “guilty” of such “crimes.” He has tried strenuously to overturn the results of a democratic election. He obviously incited a violent assault on the Capitol, he obviously refused to do anything to stop it once it started, and he has continued to refuse to acknowledge that the Democratic victory in November was fair and legitimate. He is and remains a danger to the republic and the Constitution. He surely deserved to be impeached last past week by the House.The impeachment was a necessary reprimand and repudiation before the “court of public opinion” and before “the bar of history.” The impeachment was also a necessary way of putting every public figure on record, for or against the Constitution or for or against Trump.
If it had been possible to have moved immediately from impeachment to Senate conviction and removal, I would have supported this. (If it were possible to somehow transplant a spine into Mike Pence’s body and see an invocation of the 25th Amendment, that too I would have supported.)
Trump surely poses a danger as long as he is in office. But a Senate impeachment trial this time around can only take place after Trump has left office. As I wrote last week in Common Dreams, “A Second Trump Impeachment Has Not Lessened the Current Danger.” The only reason to move forward from House impeachment to Senate trial, then, is political and future-oriented.
There is only one good reason to pursue a Senate impeachment trial and conviction of Trump after he has already left office: because only by doing so would it be possible, by a Senate majority vote, to strip Trump of the right to ever again hold a public office in the U.S. government. This would be a substantial achievement if it could be achieved. But it only makes sense to pursue it if the chances of a conviction are high and if the benefit of the result, if achieved, exceeds the costs of the result.
I think that the chances of conviction are not high, and that in any case, the advantage of disqualifying Trump from future office does not outweigh the political costs of a Senate trial.
There are three major costs, and each is significant.
First: the country really does face a multi-level crisis, and if the Biden-Harris administration is to succeed, it will need to move quickly to have its appointments confirmed and then to achieve multiple legislative accomplishments. A Senate trial would take legislative time, energy, and focus that is better spent elsewhere during the first hundred days. And it would also provide the most reactionary House and Senate Republicans a nationally televised platform to foment divisions inside and outside of Congress and to obstruct any Democratic legislative agenda. An impeachment trial will likely be bad for Congress. This is bad.
Second: a Senate trial will give Trump himself public “oxygen” at a time when the best thing for the Democrats, the country, and democracy itself is to do everything possible to deprive him of any attention and any chance of whipping up his angry mob. A Senate impeachment trial will not be a part-time affair. It will not be a legalistic deliberation. It will be a three-ring circus in which the master carnival barker, Trump himself, will be able to devote his entire being to producing his own “reality TV.” It is a huge mistake to allow Trump to play the victim in such a public way. For if he is allowed to do this, he will surely incite further violence and more easily build up his “political brand,” which will be significant whether or not he can run in 2024. An impeachment trial might be good for Trump, surely much better for him then spending the next three months in a miserable ignominy. This is bad.
Third: right now any major legislative attention placed on Trump is attention that would better be focused on delivering real benefits to ordinary Americans and working families, and demonstrating that the Democrats can govern fairly and effectively. There are huge opportunity costs, in terms of substantive public policy “deliverables,” to conducting a Senate trial. And it is simply absurd to minimize this concern by saying “the Senate can have the trial in the morning and can legislate in the afternoon.” (Will we next be told that Senators can also “hunt in the morning, fish in the afternoon, rear cattle in the evening, criticise after dinner, just as [they] have a mind?“) Any impeachment trial will be virtually all-consuming, for Congress and for the public, because that is the nature of our mediated politics. This is bad.
All of these concerns relate to the political costs of prioritizing impeachment relative to the advantages of prioritizing policy.
Of course, Trump’s effort to overturn the election and incite an insurrection is contemptable, and there is a moral and a legal case for convicting him. But impeachment is neither a moral nor a strictly legal affair.
As far as moral accountability is concerned, Senate conviction can accomplish nothing. And for his moral crimes and perhaps even sins, it can only be hoped that Trump will live out a life that is solitary, poor, nasty, brutish, and short.
As far as political accountability is concerned, Trump has already been twice held to political account: first by the voters, who rejected him on November 3 and then went on to reject his Georgia Senate cronies on January 5; and second by last week’s House impeachment, which is a real stain on his reputation, his legacy, and his “brand.” This has already accomplished.
In addition, his effort to remain in power illegally has been practically, materially, defeated, not simply via Congressional confirmation of Biden’s Electoral victory, but via the failure of the January 6 insurrection, and the Joint Chiefs of Staff announcement in support of upholding the Constitution. Trump will leave office in public disgrace on January 20. Capitol and Metro Police, the Secret Service, the National Guard, and ultimately the U.S. military, have signaled that they will ensure this. This is the ultimate form of political accountability.
There is finally the real question of legal accountability. But this too is not a matter for impeachment. Trump (and his family members and closest accomplices) remains vulnerable to possible federal prosecution, and there is no reason why the Justice Department should refrain from investigating Trump’s possible crimes or from prosecuting them. Trump also remains even more vulnerable to state and local prosecutions. Trump is likely to be tied up in many courts for years to come. This represents real legal accountability, and will impose real costs on the quality of his life, his businesses, and perhaps even his freedom.
It is not worth the time of the Senate as a body to focus on Trump, and it is not worth the time of the public to focus any longer on Trump. Not at this moment.
Congress should now be focused on passing a strong Democratic legislative agenda. This is the best way to further Trump’s political defeat.
After January 20, Trump will be a private citizen, subject to economic penalties and the demands of justice in a wide range of legal venues.
If the House were to refrain to forward the article of impeachment to the Senate, or to infinitely delay a trial, this would not mean a failure to reckon with the January 6 assault on the Congress and the Constitution.
Congressional investigations of the insurrection are already underway. So too is an inquiry by the Washington, D.C. District Attorney. The Justice Department will also surely investigate this awful event. Anyone involved in the insurrection should be held legally accountable for violating relevant local and federal laws, and this includes Donald Trump. But such means of accountability are different from a Senate impeachment trial, for they involve protracted hearings; they lack the spectacle that a Senate trial will furnish and that Trump craves; and, unlike impeachment, they might have real legal, and criminal, consequences.
In short, a Senate trial, which has many costs, is not even necessary for Trump to be held accountable.
It must be conceded that none of the above-mentioned things offers what an impeachment conviction offers–a strict legal prohibition on Trump running for office again. It is possible that Section Three of the Fourteenth Amendment might provide grounds for such a prohibition via ordinary legislative and/or judicial means. It is also likely that the best guarantee we have that Trump will not run again is his awful health, old age, and deteriorated mental condition.
But the best way to deprive Trump of any political future, and to weaken the movement he leads or at least incites, is to generate and build political momentum behind a robust Democratic legislative and organizational agenda. Dealing with the pandemic and the economic crisis, promoting economic and racial justice, enacting real voting rights and electoral reforms, engaging the crisis of global warming—these things can improve peoples’ lives and thus build Democratic power and democratic power. In the short run nothing will wean away Trump’s hard-core base–and the proper means for handling the danger of right-wing extremism is federal law enforcement, not social policy. But it is possible, through policy and political organizing, to build a stronger Democratic electoral and legislative majority. And who knows what may be possible in the long term?
Trump has done so much harm to so many people, institutions, and values. He has permanently damaged our political system, and he has brought it to the brink of an authoritarian takeover. He deserves repudiation and reprobation, and he ought to “pay” for what he has done. But impeachment is about politics, and what we need politically, now, is to remove him from center stage as quickly as possible.
And so I think that the best thing now is to let Trump leave the White House in disgrace, to do everything possible to put him out of the public mind, and to move forward politically with the business of Democratic governance and democratic citizenship.
There may be costs to this. But everything has costs. And right now the benefits of moving forward politically seem far more valuable.