A Senate impeachment trial could backfire

There is therefore a significant question as to whether the Senate should proceed to a trial that is foreordained to acquit. Some would argue that the risks of a failed impeachment are worth taking to preserve the principle that no person is above the rule of law. Yet whether pursuing another impeachment destined for failure would actually accomplish this purpose is far from clear. An acquittal might send a stronger message of impunity than would no prosecution at all; a failed impeachment might encourage a future president to further test the limits of presidential power. And while a conviction could prevent Trump from running again, an acquittal would likely only increase his electoral chances while simultaneously boosting the prospects of his allies. There is therefore little to be gained and much to lose: A Senate trial that will end only in futility is not a good idea.

At the same time, the immense importance and wisdom in the House’s decision to initially bring the impeachment should be recognized. Initiating the impeachment accomplished a critical and crucial function. It constrained an erratic and volatile president during his last few days in office — when he still held the levers of power. Given the uncertainty and precariousness surrounding that moment, the significance of this achievement cannot be overstated.

Consider how the threat of impeachment reportedly influenced Trump’s exercise of the pardon power. He did not pardon the Capitol rioters, he did not pardon others accused of inciting insurrection, he did not pardon his family, and he did not pardon himself. As a result, the path remains open for the criminal liability of Trump’s allies, and perhaps of Trump himself, to be decided openly in courts of law, rather than by presidential fiat.

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