[Note: I originally posted this at Ordinary-Times a couple weeks ago. I have edited this version from that one, and my most extensive edits concern my point about the electoral college. I'll state this, too. I wrote this post after the House had voted for articles of impeachment, but before the Senate took up the articles. So some of what I say here is dated by those developments.]
If you support impeaching Donald Trump now that he's out of office, you should account for certain hazards
(I realize Mr. Trump has already been impeached and the question now is whether the Senate should convict and if so, what punishment it should exact. However, in this post I'm using the word "impeachment" as a synonym for "the process of trial and conviction by the Senate, as well as the decision for what punishment to mete out if the Senate convicts.")
I have mixed feelings on whether post-tenure impeachment is wise, and I have theoretical qualms about whether it's right. While my feelings on the matter aren't particularly strong, I'm inclined to believe that principal purpose of impeachment is removal from office and not punishment after exit from office. I'm bemused by those who say, "a person can just resign from office to avoid being impeached!" My uncharitable reductio is to suggest they're really saying, "How dare a politician do something that the policy was designed to effect to begin with!" That said, I'm not certain that I'm right about the principal purpose. Even if I am right, it's not clear to me that the principal purpose ought to obviate an ancillary purpose, such as forbidding an ex-officeholder from ever holding office again. So maybe impeachment is right after all.
All that is to say that I write this post not as an argument against impeaching Mr. Trump now, but as a warning of what we might expect when we do. Also--and in case it's not clear-- I write this post with the conviction that Mr. Trump must never take power again.
A Senate trial will keep Mr. Trump in the spotlight
This point is obvious, but I should say it anyway. Mr. Trump's ego seems to thrive on publicity. A Senate trial will keep him in the news and will enable him to portray himself as a martyr. A politician who bases his appeal on being an outsider who opposes the establishment can only hope that the Senate, one of the symbols of the establishment, put him on trial. I've tried to argue in a previous post that all impeachments bear presumptive appearance of a "kangaroo court." I no longer say (as I think I was saying in that post) that they are (in some ways) kangaroo courts. But it's no secret that they appear that way. And most, perhaps all, serious commentators on impeachment recognize that it is in some measure a political process, and not a strictly legal or judicial one in the way that most of us understand those words.
That's a long winded way to say this. An impeachment trial will impart a veneer of legitimacy to Mr. Trump's claims to martyrdom.
A Senate trial might take too long
Ironically, one thing that would mitigate against Mr. Trump's ability to claim martyrdom--a trial that gives him every reasonable opportunity to present a defense--might also work against the interests of those who oppose Mr. Trump.
In my opinion, now that Mr. Trump is out of office, the argument for an expeditious trial has evaporated. While he was in office, part of the point of impeachment was to remove a dangerous person before he could do more harm. Now, it's an issue of process. Even if you believe Mr. Trump doesn't deserve the time to mount more than a perfunctory defense and even if you believe the Senate should summarily vote to convict, you still have to deal with perception. A too-speedy trial and too-speedy vote, no matter how well-justified, will also appear too hasty.
A Senate trial might also prove a distraction, especially if it takes more than a few days. Mr. Biden has a lot of work to do. He may need Congress to pass legislation. He needs to reinstall something like competent leadership in the non-civil service offices to which he is responsible for naming people. He needs the Senate to approve them. He can't do it all with executive orders and naming acting heads or acting deputy heads of such-and-such department.
Yes, my partisan blinders are showing here. I'm fairly optimistic in Biden's ability and willingness to appoint, on the whole, competent people. I'm also optimistic (though less so) that any legislation to come to Mr. Biden's desk in the next few months will be on the whole worthy legislation. Events will undoubtedly prove me wrong concerning at least a few of Mr. Biden's appointments. And most legislation has bad or unexpected consequences, especially if when it's drafted in a rush to address "emergencies" like the pandemic and recession. A long trial could tie up the Senate and hinder Mr. Biden's efforts. I have heard that the Senate might opt to hold the trial part time and conduct other business as it goes along. If so, then this "hazard" is less of a hazard.
The Senate might not convict
Others might have more to say about which senators will or might vote to convict and which wno't. I haven't followed the nose counting closely at all. I'd be surprised if two-thirds of the senators vote to convict, but maybe I'm wrong. In addition to enduring the problems of keeping Mr. Trump in the spotlight and the distraction that a trial likely would present, a failure to convict would embolden Mr. Trump. We all know how he would respond even if the vote were 66 to 34. He would hail it as an exoneration, as a victory to surpass all victories, and as a repudiation against the establishment that has it in for him and his loyal followers.Mr. Trump might run again even if he's convicted
Let's assume the Senate convicts. Let's also assume the punishment is set at forbidding Mr. Trump from ever holding federal office again. Even then, Mr. Trump might choose to run again, and he might have an argument for why he should be on the ballot. It still hasn't been decided that the Congress can impeach ex-officeholders. Note the passive voice. It might be the courts, or it might be the states, or some other mechanism that "decides."The courts
I understand that the weight of legal scholarship says Congress can impeach someone who has left office and, by extension, can forbid that person to run for federal office again. But it strikes me that the argument against is at least colorable. When the case is taken to court, we won't have a rehash of the faux litigation we saw in the efforts to contest the 2020 election. Then, the lawyers declined to make specious and frivolous claims in court. They knew that the claims were specious and frivolous and that making those claims could lead to disciplinary action from the courts or the bar.
With ex-officeholder impeachment, the basic argument won't be specious or frivolous. It might be wrong, but the argument will be plausible enough for a lawyer to utter in court and keep their law license.
The states
Or the courts might punt and say it's a political question. How is that question resolved?
I assume the states will have to answer. And because the "Congress can't impeach ex-officeholders" is at least arguable, Trump-leaning governors and secretaries of state--and perhaps Democratic-leaning officeholders who have a principled objection to impeaching ex-officeholders--might place Mr. Trump on the ballot anyway.
Making that decision may be wrong, but it's not the same kind of wrong as, say, falsifying election results after three recounts. In that case, there is something of an "institutional interest" in running fair elections and standing by the results, even if the results go against the preferences of whoever heads that institution.
The incentives for the same state-level policymakers are different when it comes to the question of whether we should add someone to, or exclude that person from, the ballot. One could justify adding that person by claiming that doing so gives voters the full range of choices. I can see a principled policymaker saying, "yeah, the impeachment was probably legitimate, but we should err on the side of letting the people decide." As a matter of constitutional law that statement is (probably) wrong. As a matter of small-d democratic principles, it has a certain appeal.
And consider this argument. When we vote for someone to be president, we aren't voting for that person who stands for president. We're instead voting for electors who have promised to vote for that person. Those electors haven't been impeached. I find it hard to argue that they shouldn't be able to stand for election. If they stand for election and cast electoral votes for Mr. Trump....Well, I don't know what would or could happen. The states might let them stand for election. Congress might count their votes--or not. If Congress refuses to count the votes, we might have a situation where no one person gets a majority of electoral votes. The Constitution has a procedure for that eventuality, but it's messy and might create an unlikely and unwanted outcome.
I bring up that last point about electors only to suggest that impeachment might not be the cure the impeachers believe it to be. I do concede that if we accept a situation in which Mr. Trump runs again and wins a majority of electoral votes, it would be better if we had an impeachment on record to disqualify him from office.
Conclusion
One thing I have not listed is the precedent impeaching ex-officeholders might set. The bar for impeachment and conviction is so high, and the stakes so low, that I'm not particularly bothered by the prospect that it will be turned against someone I don't want it to. (Be sure to bookmark that sentence for when my own ox is being gored and I complain about the precedent that was set.)
I said it above and I'll repeat. Mr. Trump must never take power again. I endorse almost any legal means that promises to ensure he doesn't, provided that means is prudent and doesn't create problems that are worse. (I say "almost any legal means" and not "all legal means" I can imagine a by-the-book legal effort to disfranchise the type of people who allegedly might vote for Mr. Trump. Maybe one example would be reprising literacy tests. I don't endorse that approach. Also, I use that as an illustration. I reject the notion Trump supporters are anti-intellectual illiterates. It's an ad hominem attack that is, I believe, factually wrong. And even if it be correct, it would still be an ad hominem attack.)
I feel it necessary to state that in part because I have engaged in my own pro-Trump (or pro-Trump-adjacent) apologetics. I renounce only what I've explicitly said I renounce. I stand by everything else. But I want it to be clear that I have always opposed him and still do.
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