Trump’s Lawyers Are Helping Advance Impeachment’s Purpose
Former U.S. President Donald Trump gestures to visitors on the South Lawn of the White House. (Photographer: Ken Cedeno/UPI/Bloomberg)

Trump’s Lawyers Are Helping Advance Impeachment’s Purpose

BloombergOpinion
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The opening of former President Donald Trump’s impeachment trial highlighted three realities: The breach of the Capitol on Jan. 6 was a horrific episode that both mainstream political parties reject. Trump’s lawyers are woefully unprepared. And enough Republican senators will claim the trial is unconstitutional to assure that Trump won’t be convicted.

So, what’s the point of the rest of the trial?

The trial still matters because the theater of impeachment has a deadly serious purpose. In fact, Trump’s lawyers have already begun to fulfill one of its central functions: They are admitting, in a way that Trump himself has not, that the Jan. 6 attempt to disrupt the democratic process was a serious threat to democracy itself.

Impeachment is designed to color in the red lines on the map of constitutional democracy. The lines have a purpose and a message: Stay inside them, and you may be voted out of office or otherwise held accountable by the voters. Cross them, and the system is supposed to stand up and take extraordinary steps to punish you. If it doesn’t, the system itself is profoundly weakened.

Seen for what it is, the impeachment is an object lesson in delineating the fundamental, unbreakable rules of democracy. It offers civic education in the deepest sense to the entire country, and indeed the world.

It doesn’t matter if the outcome is inevitable. The core message still needs to be made forcefully: This was not within the bounds of what constitutional democracy can afford to tolerate.

The first impeachment trial was about showing that a president can’t attempt to break the democratic process by abusing the power of his office to subvert the election in advance. This second trial is about showing that a president can’t attempt to break the democratic process by denying the legitimacy of the election and inciting the public to block the peaceful transition of power. The entire country needs to hear that.

No matter how much Trump wants to think otherwise, the impeachment trial amounts to the most aggressive condemnation of his conduct the constitutional system can offer. It’s noteworthy that his lawyers, weak and deer-in-the-headlights as they seem, aren’t defending the storming of the Capitol. They are trying to separate Trump from it as much as they can.

Both during and after the assault on the Capitol, Trump made it clear that he was sympathetic to the rioting mob. His lawyers, to the contrary, are seeking to distance him from the mob.

If this is hypocrisy, it is also the tribute that vice pays to virtue. And that tribute is valuable, a product of the impeachment trial. It helps define and reinforce a bright line against violent intervention in the democratic process.

To see what I mean, imagine different lawyers — maybe the ones Trump wishes he had — who stood before the Senate and repeated Trump’s claims that the election was stolen from him and that the former president “loves” the rioters even now. That might energize some of Trump’s base. If the Senate nevertheless refused to convict Trump, the public takeaway would be that the Republican Party continued to embrace election denial and was turning to subversion.

This outcome isn’t completely inconceivable. After all, some 140 House Republicans voted to reject Pennsylvania’s electoral votes even after the riot happened.

That this isn’t the impeachment trial scenario — at least not so far — means the trial may yet achieve its constitutional function.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “The Three Lives of James Madison: Genius, Partisan, President.”

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