Incoming President Joe Biden seems lukewarm about the second round of impeachment proceedings against President Trump. Now that the House has impeached Trump, a conviction trial would tie up the Senate during Biden’s first days in office, possibly slowing the approval of Biden’s Cabinet nominees and his first legislative moves. And Biden would take office amid partisan warfare that’s the opposite of the calm normality he seeks.
There are no good options for the Biden Justice Department. Letting Trump off the hook would establish a galling precedent for presidential impunity, suggesting future presidents can commit crimes with no accountability. But investigating and prosecuting Trump would be ugly too, giving Trump grounds to claim persecution from political enemies. It would be even worse if Trump tries to pardon himself, since that could force the Justice Department to prosecute Trump even if it didn’t want to, in order to secure a ruling from the Supreme Court on the obviously problematic idea of a self-pardon.
Members of the National Guard rest in the Capitol Visitors Center on Capitol Hill in Washington, DC, January 13, 2021, ahead of an expected House vote impeaching US President Donald Trump. (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
Stain of conviction
But if the Senate convicts Trump, it would represent the maximum punishment from a co-equal branch of government. It would also require bipartisan support, since at least 17 Republicans would have to join all 50 Senate Democrats to reach the required two-thirds majority. That would defang Trump’s near-certain complaints about partisan retribution. If the Senate did convict, it would probably also pass a second resolution preventing Trump from holding federal office in the future, which would be enough to assure Trump can never again use the reins of power to incite violence.
Impeachment and conviction wouldn’t send Trump to prison or wreck his post-presidential personal life. He’d probably lose a government pension of about $200,000, though courts may have to decide that if the Senate convicts Trump after he leaves office, since it’s a novel situation not spelled out in the law. He’d probably lose other perks as well, such as funding for a presidential library. He’d retain Secret Service protection, but the stain of conviction could make it hard for Trump to give lucrative paid speeches, as his predecessors have done. It could also cause reputational harm to Trump’s real-estate business.
This would be enough, however, for Biden to credibly say Trump has faced justice, and to call off any further Justice Department investigations. He could also point out that Trump faces civil and criminal investigations at the state and local level, in New York and elsewhere. There’s no perfect outcome in a situation where a probable criminal has significant public support, as Trump does. But a combination of bipartisan Congressional condemnation, official sanction and nonfederal legal jeopardy are significant, if not maximum, consequences for Trump.
Letting Trump off the hook
Without a Senate conviction, Biden’s Justice Department will probably have to investigate Trump, which could drag on for months or years and fuel Trump’s grievance complex indefinitely. That would make it harder for Biden to get bipartisan support for top agenda items such as infrastructure spending, climate action and health care reform, since Republican Trump supporters in Congress would be in a continual state of war with Biden’s Democrats, for as long as the matter percolated.
President-elect Joe Biden leaves after attending mass at St. Joseph on the Brandywine Catholic Church in Wilmington, Del., Saturday, Jan. 9, 2021. (AP Photo/Susan Walsh)
Biden would have problems within his own party if he let Trump off the hook, with no consequence. Progressive Democrats and other Trump critics would howl. That makes a Senate conviction almost the perfect compromise, from Biden’s perspective. The Senate would be doing Biden’s dirty work for him. And it would wrap up the matter in Biden’s first days in office, freeing Biden of the Trump Problem for essentially his entire presidency, if Biden goes that direction. Well worth a minor delay in Biden’s other first-day priorities.
There’s also danger for Biden if the Senate fails to convict. That would leave the whole problem as messy as ever, perpetuating the divide between those who feel Trump must be punished and those who think it’s more important to stop the fighting. Trump would be pleased, of course, and he might revel in taunting Biden for the foreseeable future. Biden would start with the divisiveness he wants to avoid, and it might get worse instead of better. If Congress wants to move on from Trump, the way to do it is to convict him now.
