America has lived under its Constitution for 232 years, so it is quite rare to have a constitutional event that has never happened before. On Tuesday, America will begin witnessing two of those first-ever events, occurring simultaneously.
That is the day the U.S. Senate is scheduled to begin the trial of former President Trump on a single charge: inciting insurrection at the Capitol on January 6. Trump is the first in U.S. history to face two presidential impeachment trials, and he is the first former president ever to be tried on an impeachment charge.
Because 45 of the 50 Republican Senators voted on January 26 in favor of a motion that trying a former president would be unconstitutional (that motion failed), it is highly doubtful that at least 17 in the GOP ranks will support conviction. That would be the number needed if all 50 Democrats vote to convict, since the Constitution requires a two-thirds majority (67) to convict when all Senators vote.
Even if there were 67 votes to convict, Trump’s departure from office last month means that the only result would be that the Senate would then cast a separate vote on whether to bar him from ever serving again in the presidency or any other federal office. To disqualify him in that way would take only a majority (51) of the 100 Senate members.
(It should be emphasized that such a disqualification vote would have to be preceded by conviction on the impeachment charge. The Fourteenth Amendment provides an alternative way to accomplish a future disqualification, for an official who had engaged in insurrection, but that relic of the Civil War era has never been used against a president and how it would work is not clear.)
What, then, will it mean to put Trump on trial again? At a minimum, it could be something of a catharsis for the violent invasion of the Capitol last month. There has not yet been anything like an accounting for that incident, since no one has yet gone on trial for any resulting crimes, and there has been no deep inquiry into what and how it happened. There has been no national period of mourning, except one evening of a televised memorial to the one Capitol police officer murdered during the invasion.
But the managers of impeachment from the House plan to put on a highly emotional, video-saturated prosecution, and may even call some victims of the invasion to testify. The pain of that day is likely to be vividly replayed, and the House managers will seek to blame that pain directly on the former president.
But will it mean anything in constitutional terms (assuming that Trump is not convicted)? It will definitely set a precedent, if for no other reason than the uniqueness of the event. Trump will have a unique place in the dark side of American constitutional history: his rise to power seems surely to remain forever tainted (by Russia and James Comey) and his performance in office may never be judged by history as legitimate.
But this trial also could educate America on how very close the nation may be to a civil war – not in the shooting sense, as in 1860-1865, but in an ideological sense. It is very likely to be a new reflection of what happened when the nation voted on November 3: slightly more than half of the country opposed continuing President Trump in office, but only slightly less than half were agreeable to giving him another term. This time, Senators will be voting, but the alignments and the sentiments may remain largely the same.
There no doubt were and are many reasons, on each side of that divide, but fundamentally there had to be a chasm of difference over how Americans define the political character of their nation in the first quarter of the 21st Century.
The former president and his enablers spent more than two months, more than 60 lawsuits and hours of debate in both the House and the Senate in the pursuit of the notion that the election had been stolen from them, that Trump had actually won, and that constitutional processes can be manipulated cynically.
The tradition of a peaceful transfer of power, which dates in history all the way back to John Adams yielding to Thomas Jefferson in 1801, was at least a temporary casualty. But more than that, the nature of democratic (small d) choice and the fundamental concept of political representation have been challenged as they probably have not been since 1860.
Americans have repeatedly amended their Constitution to make the right to vote more inclusive. As I noted in a lecture last fall, “of the 17 amendments that have been added since the Bill of Rights were ratified in 1791, nine of the 17 have dealt with the right to vote, and most of those nine expanded it.”
However, the Trumpian challenge to the November 3 outcome fit perfectly into a pattern of disenfranchisement and vote suppression that has been a Republican project for years. It no doubt will continue, as state legislatures this year and next begin the process of drawing new election boundaries (for themselves and for congressional delegations) in the wake of the 2020 census, and as many Republican state legislators already are signaling that they will seek to make it more difficult in the future to vote by mail, to vote early, and to register and vote on the same day.
President Trump’s time in office, and especially his conduct since November 3, have only enhanced – and sought to validate — that GOP project.
This week, as Trump’s second impeachment trial unfolds, Americans should not expect Republican Senators to defend openly the Trump record as a whole or his role on January 6 in particular. But there will be no mistaking the fact that the votes that most of them cast against conviction will be their way of expressing their interpretation of American constitutional norms.