The Trial Is “the Nation’s Work”

Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is regular contributor for The Constitutionalist.

Seeking to dismiss the article of impeachment against former President Trump late last month, Senator Rand Paul of Kentucky unwittingly revealed what is most at stake. “Instead of doing the nation’s work with their new majorities in the House and Senate and the executive branch,” he railed, “the Democrats are wasting the nation’s time on a partisan vendetta against a man no longer in office.”

But the impeachment is not about a vendetta against one man. It is about vindicating the Constitution against a political subculture, embodied in Trump, that normalizes insurrection and embraces violence. Constitutional self-government is the mechanism by which the nation’s work gets done. As the trial begins today, senators should reject the distinction between affirming the former and carrying out the latter.

Critics of the trial, Republicans and Democrats alike, have said that Paul’s gambit—which drew the support of 45 Republicans, suggesting a likely acquittal for Trump—means a trial is a waste of time at best and risks emboldening the former president and his base at worst.

Yet if the nation has either so quickly forgotten the insurrection of January 6, or shrinks so easily from confronting extremism for fear of inflaming it, a reckoning is all the more necessary. The  trial will help the nation face an inescapable reality: President Biden may have declared victory prematurely in announcing in his inaugural address that “democracy has prevailed.”

In the mere weeks since January 6, as thrall to Trump has resurged, memories of the insurrection have receded in the same legislative chambers where rioters threatened the lives of lawmakers and disrupted a constitutional process. Republicans who solicit forgiveness and healing for Mr. Trump are seeking retribution against the few members of the party who voted to impeach him. Several of those members may face primary challenges.

Representative Kevin McCarthy, the House Republican leader, initially allowed that Mr. Trump “bears responsibility” for the mob that stormed the Capitol. In a subsequent interview, he backpedaled to a bizarre assertion that “everybody across this country has some responsibility.” For a party that purports to prize personal responsibility, Republicans have been remarkably unwilling to allow a supposedly strong leader to be accountable on his own two feet for the words that came from his own mouth. Is the McCarthy defense—“society made me do it”—available to indigent defendants in criminal trials?

McCarthy recently made an apparently penitential pilgrimage to the home of the former president, who has let it be known that he intends to remain a force in the Republican Party. In announcing the opening of his post-presidential office in Florida, Trump said its purpose would including carrying on “the agenda of the Trump Administration through advocacy, organizing, and public activism.” If his advocacy was unconstrained by constitutional niceties while he was under oath to defend the Constitution, it is unlikely he will reform himself as a private citizen. The Republican conference McCarthy leads could not bring itself even to hold the fanatical Representative Marjorie Taylor Greene at arm’s length. Amid all this, the Department of Homeland Security warns of a rising threat from “violent domestic extremists” inspired by the insurrection.

Paul nonetheless suggested there was more important business than addressing Trump’s culpability in the riot and, by extension, that of the violent subculture he has stoked. Without the impeachment, Paul said, Democrats “might actually have to legislate” and therefore convince the public to support their policies. That, more than anything Paul said, illustrated why the impeachment matters so much. Ordinary policy disputes are resolved through the processes of constitutional self-government. The insurrection of January 6 showed that neither all Americans nor all elected leaders support those processes. Legislation cannot meaningfully proceed until the constitution mechanism for deliberating on it peaceably is affirmed.

Even some Democrats appeared to accept the basic terms of Paul’s dichotomy between the public’s business and Trump’s trial. Senator Tim Kaine, a Virginia Democrat and an admirable advocate for Congressional authority in other contexts, has explored barring Trump from future office under the Fourteenth Amendment rather than a trial and conviction. “I want to focus as much attention right now on the Biden agenda as possible and minimize the attention on anything other than the Biden agenda,” he explained.

But it is difficult to conjure any element of the Biden agenda that is more important than affirming the Constitution. Democrats have spent four years arguing that constitutional procedure and norms were more important than fleeting policies. The pandemic is a public health emergency, and the recession is inflicting real pain. But neither is as enduring as the threat to constitutionalism. Prioritizing Biden’s agenda over constitutional vindication would also prioritize solving today’s problems over the country’s ability to solve problems peacefully in the future. Biden seemed to acknowledge that in warning that, while a trial could delay his legislative agenda, there would be “a worse effect” if the trial does not occur.

Constitutionally, the “Biden agenda” does not dictate the Senate’s judgment as to its priorities. If it did, the separation of powers—the Constitution’s primary guardrail against the government abusing the people—would be a dead letter.

It is consequently a positive good, not a regrettable side effect, that the impeachment trial may delay Biden’s priorities. Such an act of legislative assertion will declare the constitutional ground rules for the Biden era: The president may, as Article II of the Constitution indicates, “recommend” measures to Congress. But Congress sets its own agenda and exercises its own judgment about what most needs attention. What most needs attention now is the attack on the Constitution. Congress acting accordingly is itself an act of constitutional restoration.

The fact that 45 Republicans voted to dismiss the article of impeachment may suggest the trial is doomed. So be it. The process itself will clarify the constitutional stakes and their priority over ordinary legislation. Paul said last month that public opinion should allocate blame for political behavior. Given that the danger to constitutional self-government persists, a full trial that forces senators on record with respect to a political movement that normalizes insurrection will be indispensable in helping the people do their duty. That is not a distraction from the public’s business. No public business is more important.

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