History — and the American people — demand that former President Donald Trump be held accountable by our legal system for his misconduct that incited his followers to storm the U.S. Capitol on Jan. 6 to interrupt the peaceful transfer of power outlined by the Constitution.
The Democratic-led house, by impeaching Trump on Jan. 13 before his term of office ended, offered Republicans in the Senate one option to do so. But by delaying any possibility of holding a trial until after his term of office was up and then — as 45 of 50 Republican senators voted last month — declaring that convicting him on those charges was unconstitutional, members of his own party have paved the way for the criminal justice system to be the only mechanism to hold him to account.
In 1993, the Supreme Court recognized in Nixon v. United States (unrelated to the former president) that the Constitution envisions that the conduct of a federal official could be judged in two ways: by the Senate in an impeachment trial and by the courts in a criminal case.
In that case, the court ruled that it was powerless to review a claim by former U.S. District Judge Walter L. Nixon Jr. that his constitutional rights were violated when the Senate found him guilty in an impeachment trial after he had been tried and convicted on criminal charges, because only a Senate committee took part in the evidentiary hearings before the full Senate convicted him. The court stressed that the Constitution gave the Senate the sole authority to try impeachments, while the judicial branch is solely responsible for adjudicating criminal charges.
Because 45 Republican senators claimed that the Senate has no jurisdiction to try him after Jan. 20, they advanced the prospect that Trump's actions will be judged in a federal criminal trial.
In the court's majority opinion, Chief Justice William Rehnquist wrote that "the Framers recognized that most likely there would be two sets of proceedings for individuals who commit impeachable offenses — the impeachment trial and a separate criminal trial."
"In fact," he wrote, "the Constitution explicitly provides for two separate proceedings. See Art. I, § 3, cl. 7. The Framers deliberately separated the two forums to avoid raising the specter of bias and to ensure independent judgments."
The court also quoted Federalist 65, in which Alexander Hamilton wrote that it was essential that the decision in an impeachment trial and the verdict in a criminal prosecution be rendered by different bodies — the Senate and the courts, respectively — so a decision by the first would not improperly influence the second. "Would it be proper," Hamilton wrote, "that the persons, who had disposed of his fame and his most valuable rights as a citizen in one trial, should in another trial, for the same offence, be also the disposers of his life and his fortune?"
Hamilton clearly recognized that impeachment could strip a public official of his fame and rights as a citizen to hold federal office, while a criminal trial could result in imprisonment and fines.
But because 45 Republican senators have chosen to avoid Trump's fury by claiming that the Senate has no jurisdiction to try him after Jan. 20, they advanced the prospect that Trump's actions should and will be judged on the merits in a federal criminal trial.
Our democracy demands an accounting — and ultimately a condemnation — of Trump's incitement of a violent mob to attack the Capitol.
Impeachment, though, was designed to serve that purpose: An honest Senate verdict based on the evidence of Trump's conduct in provoking the mob's invasion of the Capitol — which endangered the lives of senators, Vice President Mike Pence, House members and others — surely would result in a conviction, which would indelibly mark Trump's actions as illegitimate and a violation of his oath of office. It would satisfy the pressing need for official action to decry that violation. It would be a warning to future autocrats against engaging in similar efforts to cripple our democracy.
And barring Trump from running for president again in 2024 would be a suitable penalty — one set out by the Constitution.
But conviction by a vote of two-thirds of the senators at a trial seems virtually impossible after 90 percent of the Republican senators went on record last month incorrectly asserting that the Senate lacked jurisdiction to convict Trump after his term ended.
Senators ducked their responsibility once before — in the impeachment trial of former Secretary of War William Belknap in 1876 (of which, it seems, there are now many armchair scholars).
Perhaps the congressmen of 1876 never envisioned a president like Trump, one undeterred by the threat of "public disgrace."
Despite being confronted with overwhelming evidence of Belknap's receipt of bribes in the Trader Post scandal — and despite the Senate's agreeing that it retained the power to try impeachment charges brought against former officials — Belknap was acquitted on all five articles of impeachment, since the votes for conviction on various articles (from 37-25 to 35-25) were less than the constitutionally required two-thirds majority.
The senators were permitted to state their reasons for voting to acquit, and 22 of the 25 based their votes on the supposed lack of jurisdiction to try Belknap, who had resigned moments before he was impeached. (Trump, of course, was still in office on Jan. 13, when he was impeached.)
In a written report afterward, the House managers in the Belknap impeachment said the proceedings were nonetheless a "great good" because "it has been settled thereby that persons who have held civil office in the United States are impeachable, and that the Senate has jurisdiction to try them, although years may elapse before the discovery of the offense or offenses subjecting them to impeachment."
Their prediction that "this decision will be a constant warning that impeachable offenses, though not discovered for years, may result in impeachment, conviction, and public disgrace" was somehow debunked by 45 Republican senators last month.
A conviction would indelibly mark Trump's actions as illegitimate and a violation of his oath of office, as well as satisfy the pressing need for official action to decry that gross violation.
Perhaps the congressmen of 1876 never envisioned a president like Trump, one undeterred by the threat of "public disgrace," or that he would find so many complicit loyalists in the Senate.
Our democracy demands an accounting — and ultimately a condemnation — of Trump's incitement of a violent mob to attack the Capitol to undermine the legitimate recording of the electoral votes that made Joe Biden president.
Republican senators' shirking their responsibility to judge Trump's actions on the merits has consequences — consequences Trump himself may not like. The focus after an impeachment trial that fails to provide the accountability Americans deserve will shift to the even more divisive prospect of a criminal prosecution of Trump for conspiracy to engage in an insurrection.
And those Republican senators, having failed in their constitutional duty to judge the former president on his conduct rather than his party affiliation, will have unwittingly assigned their responsibility to a federal criminal trial.