When Charles II was restored to power in England in 1660, his government set out to find and punish the leaders of the Parliamentarians who had ousted the monarchy and signed the execution warrant for his father, Charles I, in 1649. Oliver Cromwell, Lord Protector during the new Commonwealth, was the ringleader of the operation and thus the person most in need of being tracked down and punished. Unfortunately for the vengeful Royalists, Cromwell died in 1658 during the interregnum and was buried in Westminster Abbey. That did not put an end to things so far as the new king and his supporters were concerned. They exhumed Cromwell’s body and subjected it to a posthumous execution, dragging it through the streets of London, before hanging, beheading, and quartering it in a public display of retribution. Cromwell’s head was then posted on a stake above Westminster Hall, where it stood for more than two decades as a none too subtle warning to his supporters and sympathizers.

The impending impeachment of Donald Trump bears a passing resemblance to those long-ago events in the sense that, since he is already out of office, there is little to be accomplished by impeachment, save for the warning it may represent for the seventy-five million or so Americans who voted for him in the recent election. In that case, the impeachment is likely to serve as another spectacle in the unwinding of America as a functioning polity. It will do nothing to address the issues that brought Trump to power and will only provoke the anger felt by his supporters over his treatment in office and the mail-in balloting used in the election.

There is a good question whether it is even constitutional to prosecute via impeachment an official who has already left office. The relevant constitutional provision states that impeachment shall reach only to removal from office and disqualification from holding any future office under the public trust. There are precedents here and there, though not very powerful ones, for pursuing impeachment after someone has left office. The authors of the U.S. Constitution were fully aware of the British parliamentary impeachment of Warren Hastings, which commenced in 1786 for offenses committed years earlier while he was the head of the East India Company. When it was suggested during the Constitutional Convention that impeachment should be limited to treason against the United States, a member pointed out that Hastings was not being tried for treason, but for various kinds of corruption and misconduct (for example, pursuing the execution of an official who might have testified against his own corruption). On the basis of such observations, the language in the impeachment clause was expanded beyond treason to include additional violations: “bribery or other high crimes and misdemeanors.” As for Hastings, his trial in the House of Lords dragged on for seven years until, perhaps due to exhaustion, the Lords eventually rendered an acquittal.

Like much else in the Constitution, impeachment is a mixture of political and legal considerations and was recognized by the authors as an inherently divisive process. In Federalist 65, Alexander Hamilton wrote that impeachments are “political” in nature “as they relate chiefly to injuries done immediately to society itself.” This is the reason that the sole power of impeachment is given to the political branch—the House of Representatives and the Senate—rather than to the courts. Hamilton recognized that impeachments “will seldom fail to agitate the passions of the whole community, and divide it into parties more or less friendly or inimical to the accused.” In high-profile impeachment cases, he wrote, legal and constitutional claims are usually grounded in political calculations of one kind or another so that, in the end, the impeachment of presidents will always be a political rather than a narrowly legal process.

The Democrats today seem to be of two minds on impeachment. On the one hand, they would sorely like to make an example of Trump, and thus send a warning to his supporters never again to vote for a similar character; on the other hand, they fear that an impeachment may impede the progress of the Biden administration and further polarize matters to the point that they will lose their majorities in Congress in the next election. Naturally, as is always the case with liberals, zeal will prevail over sound reasoning: they will proceed with the bill of impeachment in the Senate. Donald Trump, though much hated, is hard to let go.

As for Trump, the proceedings in the Senate may give him another opportunity to seize the public stage. No one knows what he might do or say—though there remain millions of supporters who will accept his version of events. Trump could easily claim that what he said to that rally in Washington was only to mobilize and gather his supporters—something other politicians do all the time—and not to encourage an assault on the Capitol. His counselors might attack members of the Senate and other Democratic officials for condoning riots in city streets over the summer—and President Biden himself could be subject to such attacks. After all, members of his administration sent funds to bail out rioters over the summer—a clear indication that they supported the violence and destruction of property that accompanied those “protests.” Indeed, there is little question that Democrats tried to use the riots over the summer to discredit the Trump administration and promote turnout in their “base.” That approach—rioting as an election strategy—may have worked. To the extent it did work, we can be sure that it will be trotted out again.

This is taking place against a political background in which the two parties seem to represent two different countries, and thus must engage with one another much as heads of state negotiate with adversary nations. Democrats will not be able to get rid of Trump in the way that Charles II gained retribution against Cromwell and his supporters. The constitutional system by its design requires a fair amount of agreement because there are so many options that minorities can take to gum up the works. The impeachment is likely to make matters worse by encouraging further acts of revenge and retribution in an ongoing tit-for-tat process that will not have a good ending.

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