This week, we start the second impeachment trial of Donald J. Trump. For those of you who have been sent here by a family member trying to save you from Newsmax, here’s a quick recap of how we got here: After losing his bid for reelection, Trump spent two-and-a-half months spreading conspiracy theories and lies about election fraud. Between November 3, 2020, and January 6, 2021, he and his allies filed 62 lawsuits to try to get courts to throw out votes in states he lost; their arguments were defeated 61 times (the sole “victory” was in state court in Pennsylvania, which reduced the time voters had to “cure” their ballots by three days).
I could go on, but the months of baseless accusations of election fraud are not the reason Trump was impeached for a second time by the House of Representatives on January 13. That’s because a week earlier, on January 6, Trump gave a two-hour speech to a mob of insurrectionists at a “Stop the Steal” rally. He incited the crowd to march on the Capitol and promised he’d be there with them. Some of the crowd took his orders literally and, immediately after the speech, laid siege to Congress.
Bearing stun guns and actual guns, pocket knives and brass knuckles, and enough flags to lay claim to a quadrant of the moon, insurrectionists pushed past the under-prepared Capitol Police and sacked the building. Some merely looted and destroyed property, while others set out, again at Trump’s prodding, to find Vice President Mike Pence and other members of Congress and somehow “convince” them to declare Trump the winner of an election he lost. Some people erected a gallows and fitted it with a rope—presumably to hang elected officials they captured. Five people died, including a Capitol Police officer who was beaten to death with a fire extinguisher.
Trump watched most of the events on television, while doing nothing to stop the attack. Indeed, he arguably aided the insurrectionists by declining requests to deploy the National Guard. Later in the day, long after the insurrectionists breached the Capitol, Trump released a video telling them “we love you” but that it was time to leave. The insurrectionists were allowed by law enforcement to walk away from the scene of their crimes. (Even now, of the approximately 800 insurrectionists who actually breached the Capitol, only 182 have been arrested and charged with crimes.)
Three days after the attack, Trump was hit with something approaching consequences for maybe the first time in his life: Twitter permanently suspended him from its platform. A few days after that, the House voted to impeach him. But then–Senate majority leader Mitch McConnell refused to expedite the hearing against Trump, thus stopping the trial from taking place while he was still president. So we are now in the odd, though not historically unique, position of having an impeachment trial of a federal official after they’ve left office.
I should care more about this trial than I do. Arguably, the events of January 6 (to say nothing of the 77 days leading up to it) constitute the worst actions a sitting president has ever taken against his own country. Trump sent an armed mob to attack Congress. The last person to even try that was Robert E. Lee, and he got his ass handed to him at Gettysburg, 85 miles from Washington, D.C. Trump will go down in history as the first president who tried to violently overthrow his own government. If he is allowed escape justice for these actions, then he won’t be the last.
And yet, the most necessary impeachment trial in American history also promises to be predictable and lame. Republicans senators, some of whom encouraged the mob with the same lies Trump told before the attack, have already made the calculation that Trump is too important to their own political ambitions to be held accountable for his crimes. Instead of preparing to do what is hard, most Republicans have spent the last month looking for an easy way out. Republicans do the wrong thing so consistently that even their gaslighting and debasement has become boring to chronicle. How long can you watch a dog lick its own butt before wondering if there is more to life?
But perhaps the biggest problem is that impeachment—which is absolutely necessary, which is, in fact, the very least we can do—feels too small: like getting the guy who set a house on fire to buy the victims a new hose.
For four years, Trump has been protected from criminal prosecution of his crimes thanks to an untested legal theory pushed by the White House Office of Legal Counsel. That theory, based on an initial 1973 memo, says that a sitting president cannot be indicted by his own Justice Department.
I’ve never agreed with the OLC theory, but now it is moot. Trump is no longer a sitting president, and he no longer controls the Department of Justice. It’s not his Justice Department (or Bill Barr’s or Jeff Sessions’s)—it’s our Justice Department. And I want it to indict Trump for his crimes and help pack him off to jail.
Trump should be charged with incitement of criminal acts, at the very least. If it can be proven that he stood down the National Guard, he should be charged with sedition as well. Trump is not a defeated politician; he is a criminal on the loose. He must be treated as such.
As I’ve said before, if Trump were Black, he’d have been charged with a crime already. The government has literally arrested and charged Black organizers with incitement after they merely attended rallies. Trump riled up a crowd that went on to kill a cop and injure many others. There is no Black Lives Matter protest on record that resulted in that kind of body count. I don’t know if Trump would be convicted on these kinds of criminal charges, but he should certainly face them. Any Black person, from Barack Obama to me, would be charged if we encouraged a group of people who then stormed off and murdered a cop in our name.
Trump should also face charges for crimes he wasn’t impeached for. Sometimes I feel like I’m the only person who remembers the Mueller report and the 10 counts of obstruction of justice it report laid bare. Mueller didn’t charge Trump with those crimes because he felt constrained by the OLC memos. But that cloak of immunity no longer protects him. He’s a naked emperor, if Biden’s Justice Department would simply find the courage to tell him.
Indictment, not just impeachment, is what justice demands. Republicans would have us believe that Trump could not be charged with a crime while in office, but if he’s not indicted now that he’s out of office, he will have functionally placed himself above the law. If we don’t prosecute Trump, any future Republican president—or Democratic president, if Democrats one day become as venal as Republicans—will have impunity to use the office of the president to commit crimes.
That can’t be the right answer. That can’t be the republic our Constitution was designed to produce. Trump must be indicted and stand trial. He must be judged, not merely by politicians trying to triangulate their own presidential ambitions, but by citizens empaneled to uphold the rule of law.
I’m sick of living in a reality TV show, where the legal arguments are just campaign speeches and the jurors are trying to make themselves the stars. It’s time for Trump to learn what happens when law enforcement stops being polite and starts getting real.