Trump Should Have Been Impeached And Only Then Indicted
When Politics Overshadow Law, Deal With The Politics First
Jack Smith’s unprecedented persecution prosecution of Donald Trump is quickly becoming a Constitutional teachable moment—but not at all the “no one is above the law moment the Special Counsel might have envisioned.
Rather, Smith’s cases against Trump are metastasizing into a brutal object lesson on the true importance of the impeachment process, and why impeachment was viewed even by the Founding Fathers as a prelude to any criminal prosecution.
If current polling is at all accurate (and we must concede that polls can be notoriously inaccurate, as the 2016 election demonstrated much to the horror of Democrats), voters are increasingly unlikely to care if Donald Trump is convicted—which means they will vote for him regardless, and that could mean he will be elected President once again, criminal convictions be damned.
Take last week’s Wall Street Journal poll. Trump led Biden by 4 percentage points in a head-to-head matchup, 47 percent to 43 percent. The race shifted only slightly, to a 1-point Biden lead, among respondents who were also asked what they would do if Trump were convicted in either of the two federal cases, either for unlawfully possessing classified documents or conspiring to overturn the results of the 2020 election.
Since only about half of the respondents were asked about a hypothetical Trump conviction, the two results aren’t directly comparable. But they suggest a massive swing against Trump is unlikely. And the margins are small: With just a 1-point lead in a hypothetical Trump conviction scenario, Democrats can’t rely on a small post-conviction swing tipping the race.
For Smith, this is the absolute worst case scenario. Smith has from the start of his Special Counsel appointment been deployed as the Democrats “anti-Trump” weapon, whose mission was as simple as it was cynical: stop Trump’s reelection. That was clear even back during the summer, before Smith unveiled the “J6” indictments.
Why is Smith still investigating? Trump by definition is the top of the food chain on any collusive effort by Trump and his various staffers to presumably illegally retain and even share certain notional national “secrets”. He’s already had 38 charges placed against him. What is there to be gained by adding more charges for more documents and more presumed compromises of “national security”?
The likely answer is simple: keep Donald Trump off-balance (and, if possible, off the ballot) come next year’s elections.
If we take the polls at face value, Smith has already failed. Trump is not off-balance, and appears unlikely to be kept off the ballot. Even worse, the polls are showing that with or without criminal convictions, Trump is on a trajectory to win in 2024.
Trump’s polling dominance among the GOP candidates and now even over the current President could prove more than enough to supersede Jack Smith’s criminal cases against Trump even if Smith wins at trial. Washington is now so divided and dysfunctional that the opprobrium the Democrats hope will attach to Trump upon conviction is simply not likely to materialize.
The lesson both for Democrats and for the rest of the Republic is simply this: when politics overshadow the law, deal with the politics first, so that the law can remain untainted.
For Jack Smith, that would have meant an unprecedented third impeachment trial for Donald Trump, with criminal prosecutions proceeding only upon a successful conviction in the impeachment trial.
While there is a common presumption that impeachment only applies while a person holds office, there is historical precedent for impeachment after an individual has left office.
In 1876, William Belknap, Secretary of War under President Ulysses S. Grant, was alleged to be at the center of a corruption scandal shocking even by the standards of the scandal-ridden Grant Administration1.
The trail of evidence extended back to 1870. In that year, Belknap’s luxury-loving first wife assisted a wheeler-dealer named Caleb Marsh by getting her husband to select one of Marsh’s associates to operate the lucrative military trading post at Fort Sill in Indian territory. Marsh’s promise of generous kickbacks prompted Secretary Belknap to make the appointment. Over the next five years, the associate funneled thousands of dollars to Marsh, who provided Belknap regular quarterly payments totaling over $20,000.
As the House of Representatives prepared to vote articles of impeachment against Belknap, he abruptly resigned as war secretary. The House unanimously voted five articles of impeachment against Belknap after he resigned, and the Senate took them up, concluding that Belknap’s resignation was not a bar to the impeachment process.
We should remember also that Donald Trump’s second impeachment trial occurred after his term of office had expired and he was no longer President of the United States2, thus providing a second precedent for the notion that impeachment is not limited to current officeholders.
If Jack Smith has a case to make for offenses not covered by Donald Trump’s two prior impeachment trials, there is clear precedent for holding a third impeachment trial, thereby adjudicating the matters politically before adjudicating them legally.
We should also pause to reflect again on what Alexander Hamilton said regarding impeachments in Federalist 653.
What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?
Impeachment, according to Hamilton, is a national inquiry into the affairs of public officials. While the process is itself largely political, and thus resides within the House to vote articles of impeachment and the Senate to try them, it is nevertheless an investigative and deliberative process, the outcome of which is verdict: guilty or not guilty. While it may not have all the evidentiary rigor of a criminal trial, an impeachment proceeding nevertheless makes a case against a public official being fit for office, and specifically leaves a door open for criminal charges to be preferred when said official is convicted in an impeachment trial and found unfit for office.
In short, it makes a case against the individual in the political sphere, and if that case prevails politically, criminal prosecution for the associated offenses is immediately rendered non-controversial.
Hamilton points to this aspect of impeachment by highlighting how the process adjudicates a person’s political standing as a public individual in advance of adjudicating his statutory guilt or innocence at a criminal trial.
These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?
While Hamilton is arguing for why the Senate should be the country’s court of impeachments, his arguments also go to why impeachment is a necessary predicate for criminal prosecution of high public officials and the President especially: address an officeholder’s political situation before addressing his legal situation.
Why do it this way? One argument might be that a public official, especially in an highly divisive time (such as the present time), might not get a fair trial otherwise.
President Ford had a similar concern and reached a similar conclusion in his decision to pardon Richard Nixon after the latter had resigned the Presidency in 1974. Such was the logic he advanced in his remarks made upon signing the pardon4:
After years of bitter controversy and divisive national debate, I have been advised, and I am compelled to conclude that many months and perhaps more years will have to pass before Richard Nixon could obtain a fair trial by jury in any jurisdiction of the United States under governing decisions of the Supreme Court.
I deeply believe in equal justice for all Americans, whatever their station or former station. The law, whether human or divine, is no respecter of persons; but the law is a respecter of reality.
The facts, as I see them, are that a former President of the United States, instead of enjoying equal treatment with any other citizen accused of violating the law, would be cruelly and excessively penalized either in preserving the presumption of his innocence or in obtaining a speedy determination of his guilt in order to repay a legal debt to society.
Like William Belknap in 1876, Nixon resigned the Presidency in advance of the House of Representatives voting articles of impeachment against him. Unlike William Belknap in 1876, Nixon was not impeached in spite of his resignation.
Would Nixon have been acquitted at an impeachment trial? We can never know the answer to that question, obviously.
What we do know from history is that in the case of William Belknap, as well as in the case of President Bill Clinton5—who survived impeachment over his conduct in the Monica Lewinsky scandal, despite there being considerable evidence that he was guilty of the perjury and obstruction of justice charges outlined in the impeachment articles—impeachment acquittal resulted in no further legal sanction. Both William Belknap and President Clinton arguably were shown to have broken the law repeatedly, yet never faced a criminal prosecution for their “high crimes and misdemeanors.”
Conceivably, this is not by happenstance but is in keeping with Constitutional design. In Federalist 696, Alexander Hamilton again highlighted the significance of impeachment, and that criminal prosecution could follow upon conviction.
The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.
While neither Hamilton nor the Constitution say so explicitly, there is considerable room here for inference that an acquittal at impeachment precludes further prosecution in a criminal court.
In the case of Richard Nixon, it is tantalizing to think how events would have unfolded had the House proceeded with impeachment articles and the Senate held an impeachment trial over Nixon’s misconduct.
It is quite possible that the Senate would have acquitted Nixon just as they did Belknap in 1876 and Clinton in 1998—and arguably for similar reasons. Many Senators in 1876 felt that the impeachent lacked proper jurisdiction now that Belknap was a private citizen. A number of Senators voted to acquit Clinton, such as Republican Olympia Snow and Democrat Byron Dorgan, believed that at least some of the charges laid out in the articles of impeachment were proven, yet they felt that impeachment was not the right response. Dorgan would even describe Clinton’s conduct as “reprehensible.”
Democratic Senator Byron L. Dorgan voted to acquit on both articles.30 He described Clinton's behavior as “reprehensible”, but concluded that it did not constitute “a grave danger to the nation.”
In the case of both Belknap and Clinton, a number of Senators concluded that the factual bases for the articles were proven, but decided that it was best not to pursue the matter further—and so neither case was pursued further. The acquittal of both of these men was apparently sufficient to bar indictment and prosecution in a criminal court, despite obvious crimes having been alleged and, at least in the minds of some Senators, proven.
Would an acquittal of Richard Nixon in a post-resignation impeachment trial have likewise stopped all potential future prosecutions without the controversy of a pardon? There is no way to know, but, given the precedents we have on impeachment, it is not an unreasonable speculation.
Similarly, would a third impeachment of Donald Trump—in which his acquittal is likely, given the political tenor of the times—prove a barrier to Smith’s current criminal prosecutions of Donald Trump? By the same token, is Donald Trump’s second impeachment acquittal, which covers much of the same terrain as Smith’s “J6” indictment, a barrier to that indictment?
We should also note that yesterday’s ruling of the Colorado State Supreme Court barring Donald Trump from appearing on the Presidential ballot even in the GOP Primary catapults this question to the very forefront of the debate.
There is no way to avoid the political overtones and implications of the Colorado ruling, any more than there is a way to avoid them in regards to Jack Smith’s cases against Donald Trump. The inference that this is a ploy by Democrats and/or “the Deep State” to keep Trump from a second term in the Oval Office is not at all unreasonable.
Arguably, the Colorado ruling is itself a reason for applying the double jeopardy prohibition from the Fifth Amendment to impeachment trials. Without such a ban, an impeachment acquittal itself offers no finality, and no closure, either for the nation or for an impeached individual. The reality of Trump’s impeachments is that he was tried in the Senate and acquitted of incitement of insurrection. Regardless of the reasons behind that acquittal, a refusal to respect that acquittal opens the way to endless litigation, corrupted prosecutions, and political chaos. Acquittal at criminal trial is meant to be the end of the matter; we are seeing substantial reasons for arguing the same be held true for impeachment trials as well.
This potential necessity of an impeachment conviction puts Smith in a prosecutorial bind. On the one hand, without an impeachment trial and conviction first any prosecution he might mount against Donald Trump, including the two already initiated, is unavoidably tainted with political rancor. On the other hand, that same political rancor makes securing a conviction at a third impeachment trial well nigh impossible.
Yet this dilemma for Smith also highlights just how poorly—and un-Constitutionally—the disputes over the 2020 election were handled, and how poorly and un-Constitutionally they continue to be handled.
We must remember that the controversies Donald Trump as well as others raised over the 2020 election results were not without historical precedent. The Election of 1876 raised almost identical issues of corruption, ballot fraud, and other defects with certain states’ electoral returns.
Specifically, before we had the Election of 2020 and the J6 riot (which was not an insurrection or in any way seditious), we had the highly contested Election of 18762.
The Election of 1876 had more than a few elements in common with 2020, most notably contested state results where both sides claimed victory.
On election day Tilden led Hayes by more than 260,000 votes and appeared on the verge of winning an electoral college majority, having swept much of the South; he also won the border states and several states in the northeast, including his home state of New York, Connecticut, Delaware, Maryland, and New Jersey. However, three states were in doubt: Florida, Louisiana, and South Carolina, with 19 electoral votes among them. The status of one of Oregon’s three electors—which had already been given to Tilden—was also in question. Hayes and most of his associates were ready to concede when a New Hampshire Republican leader, William E. Chandler, observed that if Hayes were awarded every one of the doubtful votes, he would defeat Tilden 185–184. Both parties claimed victory in all three Southern states and sent teams of observers and lawyers into all three in hopes of influencing the official canvass.
Because of this, both sides submitted slates of Electors to the Electoral College.
There is zero room for debate on one point: what happened in 1876 is functionally identical to what happened in 2020.
In 1876, the matter was resolved via a special committee (and a fair bit of backroom wheeling and dealing) before Rutherford B. Hayes was elected President. And even then his Presidency was maligned by some as tainted and corrupt. Still, no one was prosecuted, and neither political party attempted to stifle public discourse with criminal prosecutions.
After the 2020 election, the Congress decided to pretend the controversies did not actually exist—and so they have persisted to this day. They persist in part because there is a significant amount of evidence pointing to at least some ballot irregularities and at least some potential fraud.
Had they followed the precedent set in 1876, appointed an Electoral Commission to resolve all claims of fraud, even if Donald Trump had not been reelected, a great many of the accusations being made today would have been blunted. If Trump had been reelected, of course, none of this current legal and political melodrama would have unfolded.
Even without an Electoral Commission, had the Democrats used the impeachment process to advance the Espionage Act case against Donald Trump, as well as to build if they so desired a new “J6” case against him, they might have put the Republicans on the defensive over Trump, and perhaps split him off from part of his party base. Had Jack Smith delivered reports to Congress on his findings, in the manner Kenneth Starr did regarding Bill Clinton, the political dimensions of Trump’s conduct could have been adjudicated in the proper forum—and if that resulted in an impeachment trial and conviction, the way would be cleared for criminal prosecutions in order to establish proper penalties.
Now the Democrats may very well be hoisted on their own petard. Smith’s prosecutions have clearly failed in their primary purpose of keeping Trump off balance and off the ballot. Even worse, those same prosecutions are having the effect of making Donald Trump more electable not less.
The lesson here is clear: deal with the political issues first, and only then deal with the legal issues.
What the Democrats do not want to acknowledge is that the Constitution is in reality a fairly remarkable document which, properly read and apprehended, in fact anticipates many of the divisive issues and controversies which adorn our politics today. They might have saved themselves a good deal of political grief and avoided another rancorous and divisive election such as 2024 is shaping up to be.
Then again, if either party actually returned to a stance of fidelity to the Constitution, the vast majority of either party’s current policies and agenda items likely would be dismissed as contrary to that Constitution. Voters would love that—the corruptocrats in Washington, DC…not so much.
U.S. Senate: Impeachment Trial of Secretary of War William Belknap, 1876. https://www.senate.gov/about/powers-procedures/impeachment/impeachment-belknap.htm.
Constitution Annotated: ArtII.S4.4.9 President Donald Trump and Impeachable Offenses. https://constitution.congress.gov/browse/essay/artII-S4-4-9/ALDE_00000035/.
Hamilton, A. The Avalon Project : Federalist No 65. 7 Mar. 1788, https://avalon.law.yale.edu/18th_century/fed65.asp.
Ford, G. R. Remarks on Signing a Proclamation Granting Pardon to Richard Nixon | The American Presidency Project. 8 Sept. 1974, https://www.presidency.ucsb.edu/documents/remarks-signing-proclamation-granting-pardon-richard-nixon.
Constitution Annotated: ArtII.S4.4.8 President Bill Clinton and Impeachable Offenses. https://constitution.congress.gov/browse/essay/artII-S4-4-8/ALDE_00000696/.
Hamilton, A. The Avalon Project : Federalist No 69. 7 Mar. 1788, https://avalon.law.yale.edu/18th_century/fed69.asp.
I could not agree more. the "law" is an essential societal tool, but the "politics" defines the essence of a society. (That's why in the hierarchy of philosophical systems, the political precedes the economical.)
Thank you for this, Peter, and for your work in general. I hope you will continue, which leads to my apology for not supporting you more; I have had some financial setbacks, but please know you are still high on my list for financial support, fwiw.