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Trump's second impeachment after Capitol riots isn't enough. He needs to go to prison.

Political sanction did not deter the president from abusing his power again, nor should we believe it would deter anyone else. A criminal conviction will.
Image: Donald Trump
President Donald Trump tours a section of the U.S.-Mexico border wall on Jan. 12 in Alamo, Texas.Alex Brandon / AP

The second impeachment of President Donald Trump has concluded, not with a bang, but with a whimper. Whether it results in a Senate conviction or not, impeachment amounts to a feeble punishment for a man who will have left office anyway.

We cannot satisfy ourselves with the prosecution of the pelt-wearing members of the mob. Prosecuting only the puppets gives license to future puppet masters.

While the forces of decency, democracy and good government prevailed in this impeachment vote, we should ask what gain this battle has wrought. A Senate debate will distract that body at a time when a new president critically needs it to confirm his Cabinet, and to approve a funding package to accelerate vaccinations and Covid-19 relief. Impeachment likely persuaded nobody; on all things Trumpian, it seems, virtually no American appears persuadable.

What is needed, rather, is criminal prosecution.

To deter the next unhinged narcissist from using the presidency to undermine the electoral process, a jury must convict Trump of his crimes. Trump previously suffered impeachment for deploying unlawful means to remain in power — using his office to leverage Ukraine to investigate then-Democratic opponent Joe Biden’s family. That impeachment did not deter Trump from abusing his power again, nor should we believe that this one will deter anyone else. A criminal conviction will.

By imposing a personal and direct punishment upon Trump, criminal prosecution will force future leaders to think twice about threatening that essential precondition of any functional republic: the peaceful transfer of power.

It will unequivocally repudiate, once and for all, the Nixonian doctrine that “when the president does it ... that means it’s not illegal.” If democracy depends on the “consent of the losers,” as some have put it, then the loser’s consent must be mandatory, and enforced by a punitive sanction.

We cannot satisfy ourselves with the prosecution of the pelt-wearing members of the mob. Prosecuting only the puppets gives license to future puppet masters.

To be clear, Trump himself committed criminal acts. As suggested by the article of impeachment, he violated provisions of the federal criminal code that make it a crime to “incite, assist or engage in any rebellion or insurrection against the authority of the United States or the laws thereof, or give aid or comfort thereto.” Insurrection carries a statutory maximum penalty of 10 years in prison and permanent barring from public office. Alternatively or additionally, prosecutors might consider charges for seditious conspiracy, incitement of a riot or violent solicitation.

How could a jury conclude that Trump incited this insurrection? Because the events of Jan. 6 were as predictable as they were horrifying. After Trump failed at the polls, in the Electoral College, in 62 separate lawsuits, in three separate recounts, on two trips to the U.S. Supreme Court and in one menacing phone call to the Georgia secretary of state, the president urged thousands of “patriots” to come to Washington to both protest this “stolen” election and to pressure Congress to disregard the 12th Amendment, which mandates the implementation of the will of the electors.

He repeatedly attempted to boost the size of the crowd by tweeting or retweeting the invitation 20 times since Dec. 30, assuring supporters that it was going to “be wild.” In the hours before the attack, Trump told the crowd that “you’ll never take back our country with weakness,” urging them to “fight much harder” and to “show strength.” His henchman, Rudy Giuliani, urged the crowd, “Let’s have trial by combat.” After that, astoundingly, Trump declined requests from congressional leaders and aides to quell the mob invading the Capitol, during which five lives were lost, until several hours had passed.

It was all foreseeable, preventable and, most importantly, orchestrated. In the words of the head of the House Republican Conference, Rep. Liz Cheney of Wyoming, Trump “summoned this mob, assembled the mob, and lit the flame of this attack.”

Could Trump avoid prosecution? It seems unlikely that he can rely upon presidential immunity to prevent indictment after he has left office. In the 1982 Supreme Court decision in Nixon v. Fitzgerald, five of the justices concluded that presidential immunity from civil suit does not shield a sitting president from criminal prosecution or for “acts outside official duties.” Legal authorities may disagree as to whether those opinions settle the argument as to sitting presidents, but there exists no legal basis for exempting a former president from criminal prosecution.

Experts appear more divided about whether a president could use the clemency power of Article II of the Constitution to pardon himself in anticipation of prosecution. On its face, nothing in the Constitution precludes a self-pardon.

A 1974 internal U.S. Department of Justice memorandum raises doubts, however, invoking “the fundamental rule that no one may be a judge in his own case,” and has the concurrence of such constitutional experts as Harvard Law School professor Laurence Tribe. Only the Supreme Court can finally resolve the issue, but we must call the question; otherwise, the door will remain open to those who might seek to exploit this uncertainty for tyrannical ends.

It will unequivocally repudiate, once and for all, the Nixonian doctrine that “when the president does it ... that means it’s not illegal.”

To be sure, we should hesitate before creating any appearance of criminalizing political differences. Doing so could launch an ever-escalating cycle of retribution of opposing parties incarcerating a succession of ex-leaders, as we see in too many failed democracies. Such concerns should inform whatever sentence that the Justice Department ultimately recommends to the judge — but they should not prevent Trump from serving a prison term.

Doing nothing merely raises a greater, countervailing risk: emboldening ambitious demagogues. Within our constitutional system of checks and balances, we can find a measured, sensible approach. We must do so, both to achieve justice for the victims of these attacks, and to renew our collective commitment to the rule of law.