William N. Eskridge Jr. and Victoria F. Nourse
Imagine that you are in the middle of a legal case against a head of a corporation for attempting to destroy the corporation. The lawyers tell the judge that the case has to be dismissed because the defendant has changed jobs. Any sensible judge would dismiss that defense as laughable, even frivolous. The shareholders have been robbed. Shouldn’t they have their day in court?
Enter Impeachment 2.0 against former President Donald Trump.
For the reasons set forth in the brief filed on Feb. 2 by the House impeachment managers, constitutional text, history and precedent allow a departing president to be impeached, even if his trial comes after he leaves office. Because it is unlikely the Senate will muster 67 votes to convict, the harder issue is whether a second impeachment trial is in the public interest.
There are real risks to a second trial, and they cannot be ignored. The trial will distract the Senate from performing its other constitutional duties and may exacerbate partisan tensions. Republicans resent being boxed into a corner, where they must choose between conscience and party; a handful will choose conscience, and the rest will blame the Democrats for their own profiles in cowardice. Democrats, in turn, will feel the frustration of Wile E. Coyote, eternally chasing and never quite catching the evasive and lucky Road Runner.
The trial is the point in some cases
Accountability might take a hit with a second failure to convict. If a president is not formally accountable for inciting and fanning an insurrection, for the first sacking of the Capitol since 1814, what limits remain for a tyrannical chief executive whose party remains loyal to him? Trump was emboldened to increasingly reckless acts by his first Senate acquittal. Would a future Tyrant in Chief be emboldened by a second?
But there are reasons for pursuing impeachment other than a conviction. In our legal system, trials are conducted every day in which the litigants can predict the outcome. The trial – not the verdict — is the point. Why? Because having a “day in court” is part of our legal system. We are in the middle of the Case against Trump. An impeachment is a charge; it’s the start of the case, not the end.
Proof of jurisdiction:Congress impeached and tried my ancestor after he left office. Trump could be next.
That’s why, if this were an ordinary legal case, the succession would not matter. If Donald Trump were just a common thief, accused of embezzling funds, the fact that he left the company in the middle of the case would not end it. The same is true of ordinary public officials. Governors and mayors are routinely tried after they leave office for sins while in office. Why? The people deserve their day in court. Malefactors who betray the public trust need to be held publicly accountable.
Constitutional questions of moment
Even without a conviction, that “day in court” has important consequences. In a most dramatic and memorable way,O.J. Simpson’s criminal trial taught us that the defendant was guilty of a horrendous crime (and he got his comeuppance in a civil verdict) and that the Los Angeles police force had a big racism problem. Litigation against the tobacco companies created a public record that their executives knew nicotine was addictive, and We the People demanded and received a massive change in federal law. A public trial with sometimes wayward jurors is not a bug, but a feature, of our legal system.
Impeachment trial:The Senate is unlikely to convict Trump. Can we count on the courts?
Based on the briefs filed by both sides, questions of great constitutional moment are at issue in the Senate trial: Was there actual evidence that the 2020 presidential election was “rigged”? Were the former president’s grievances frivolous and, if so, what relation did they have to the belligerent mob on Jan. 6? Was the sacking of the Capitol part of a larger conspiracy to bring down the government? What did the former president know, and when did he know it? Why did the former president hold back reinforcements and condemnation needed to protect the lives of his vice president and members of Congress?
We’d like to hear the evidence, and the country ought to have a public record of the Case against Trump, as well as any defense. If the former president fails to present a defense to these serious charges, he might escape the judgment of two-thirds of the Senate, but he and his enablers will not escape the judgment of history.
William Eskridge (@EskridgeBill) is the John A. Garver Professor of Jurisprudence, Yale Law School. Victoria Nourse (@vicnourse), a former chief counsel to Vice President Joe Biden, is the Ralph V. Whitworth Professor in Law, Georgetown University Law Center. Her latest book, on impeachment, will be published this year.