USA TODAY International Edition

Trump trial gives day in court to we the people

Impeachmen­t verdict isn’t all that matters

- William N. Eskridge Jr. and Victoria F. Nourse

Let’s say 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.

House impeachmen­t managers argued Tuesday that constituti­onal text, history and precedent allow a departing president to be impeached, even if he leaves before trial — and senators agreed, 56- 44, so the trial will proceed. 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 could 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 profiles 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.

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 first 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 first Senate acquittal. Would a future tyrant in chief be emboldened by a second?

O. J. Simpson and Big Tobacco

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.

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 officials. Governors and mayors are routinely tried after they leave office for sins while in office. Why? The people deserve their day in court. Malefactor­s who betray the public trust need to be held publicly accountabl­e.

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.

Public record needed

Based on the briefs filed 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 is the John A. Garver Professor of Jurisprude­nce at Yale Law School. Victoria Nourse, a former chief counsel to Vice President Joe Biden, is the Ralph V. Whitworth Professor in Law at Georgetown University Law Center. Her latest book, on impeachmen­t, will be published this year.

 ?? SARAH SILBIGER, GETTY IMAGES ?? National Guard members arrive to protect the U. S. Capitol this week.
SARAH SILBIGER, GETTY IMAGES National Guard members arrive to protect the U. S. Capitol this week.

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