Trump stalwarts to the right of them, angry progressives to the left of them, into the valley of impeachment-trial defeat ride the Democratic Senate leaders.
Stormed at with Republican shot and shell – and about a dozen votes short of the 67 required to convict Donald J. Trump of the “high crimes and misdemeanors” set out in the American Constitution – the Senate nonetheless presses forward Tuesday with its trial of the 45th president.
With his first Senate trial (and acquittal) almost exactly a year in the past, this second trial (and its likely acquittal) has been transformed from what the American Founders considered a forbidding rite of judgment into what since the ascendancy of Mr. Trump has become nearly a rote ritual.
The charges against the former president in 2021 – dismissed Monday by his legal team as “political theatre” – are arguably more severe, more consequential and more elemental than those he faced in 2020. Stoking an insurrection against the seat of the Congress – in effect seeking to overthrow one of the branches of government that were set in elegant equipoise to the presidency 234 years ago, an act not only beyond precedent but also beyond the imagination of even Mr. Trump’s most mutinous predecessors – is certainly more consequential than seeking to suborn Ukrainian President Volodymyr Zelensky in an episode so complex that its details today are largely forgotten.
And yet, with Mr. Trump in Mar-a-Lago retirement and semi-retreat and with Joe Biden in the White House and promulgating more executive orders in his first fortnight than Franklin Roosevelt signed in his first Great Depression-era month in the White House, the Democrats are diving headlong into a trial of the former president.
The reason is part rectitude (their drive to make a statement about democratic institutions) and part revenge (their unabated abhorrence of Mr. Trump). It is part philosophical (a rampage at the Capitol cannot go unanswered) and part political (Democratic progressives will not settle for less than a trial). And it is part strategical (manoeuvre the Republicans into defending what the Democrats hope to portray as indefensible) and part tactical (it’s a first step toward a broader goal).
“Practically it doesn’t make sense, but philosophically it does make sense,” said Peter D. Hart, a top Democratic pollster. “Sometimes pragmatism isn’t the best gauge. If you say there can be insurrection at the Capitol and it is not an impeachable offence, you have said for all times there is no line that cannot be crossed. The argument for impeachment is that the president crossed the line. This was an awful thing and the president needs to be impeached, and the Senate cannot let this go.”
Or, as General H.R. McMaster, who served in the Gulf War, the Iraq War and Afghanistan and whom Mr. Trump fired as national security adviser, put it in a telephone interview, “This was the president’s dereliction of duty.”
The Democrats’ goals are in three dimensions. The first is to assert the primacy of civility in a democratic polity. (In that regard, a simple censure, which might come after Mr. Trump survives a Senate vote, would do.) The second is to punish Mr. Trump (which the ordeal of a trial might accomplish.) The third is to prevent him from running for president again (which is a more complicated matter.)
A mere Senate conviction, unlikely as that appears now, will not accomplish that last goal; banning Mr. Trump from office would require a separate Senate vote but an easy hurdle because it needs only a simple majority, which in a chamber of 100 lawmakers is well within the grasp of the 50 Democrats and a handful of Republican Senators who find Mr. Trump’s behaviour repellent. And yet under the Constitution, the Senate cannot get to that second step of banning the president from holding office again unless it convicts him.
Without a conviction, the Trump opponents would then have only the tangled route of applying a post-Civil War provision of the 14th Amendment, designed for former leaders of the Confederate States of America, to Mr. Trump by deeming him as someone who had “engaged in insurrection or rebellion against the [country], or given aid or comfort to the enemies thereof.”
Perhaps the principal reason the Democrats are charging ahead with the Senate trial is that they consider it a necessary predicate to censuring the president – only about a dozen censure efforts have been made against presidents, with Andrew Jackson the one chief executive to receive one – or moving to employ Section 3 of the 14th Amendment, which has been applied outside the Civil War era just once, during the First World War, when Representative Victor Berger of Wisconsin, the first socialist elected to Congress, expressed anti-war views that led to him being considered a traitor.
“This could be applied to Trump, but it will be litigated,’' said Gerard N. Magliocca, an Indiana University law school professor and an expert on Section 3. “But what Congress could do now is to create a process to examine this and perhaps to proceed. In the end, though, the courts would have to decide whether Section 3 applied to what happened last month and to what Trump did.”
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