The impeachment trial doesn’t have to be pointless — provided it’s not all about Trump

Today the Senate will begin its impeachment trial of former President Donald J. Trump. Already, partisan lines are entrenched over both the constitutionality and the propriety of convicting a former president. But in framing the stakes around the consequences (or lack thereof) for Trump himself, partisans on both sides are missing the point — and, ironically, squandering a historic opportunity to move the country beyond him.

This misplaced focus is understandable, and not just because of Trump’s uncanny ability over these past four years to make virtually every conflict in American life about him. It is a symptom of how we think about criminal law, whether trying powerful persons or workaday defendants, whether alleging “high crimes” or run-of-the-mill offenses. But this way of thinking about criminal law, and with it this week’s trial, is short-sighted. Trump’s trial isn’t pointless once we understand that it isn’t only about Trump; it is about us.   

What is criminal law for? The stock answers focus on criminals: Criminal law is for punishing them. What we want to do, the thinking goes, is give criminals their just deserts, or deter them, or reform them or isolate them. But the impeachment trial can’t really do any of these things to Trump. He already left the White House. Conviction will not send him to jail. It will not divest his fortune. Whatever happens in the Senate, Trump can live out his days at his Mar-a-Lago resort. Trump won’t even speak at trial. The only possible material consequence of conviction would be to prevent him from running again in 2024.

So, on the one hand, how can anyone give such a person what they truly “deserve,” even if he is guilty of inciting insurrection? But on the other hand, how could conviction be “harsh” or “vindictive” toward someone who can’t be touched? Framed in those terms, it’s not surprising that some people feel impeachment is “pointless.” 

To the extent that Trump is beyond punishment, his impeachment trial isn’t all that unique. The world is peppered with people who, even if they committed a crime, are immune from sanction. Preemptive presidential pardons are one example that recently grabbed headlines. Statutes of limitations, like those that protect Bill Cosby, confer immunity to people whose alleged crimes occurred long ago. Death does too, as Jeffrey Epstein’s case recently illustrated. More than 100,000 people in the United States right now presumptively have diplomatic immunity for any crimes they commit. Corporations commit crimes but cannot be imprisoned. And, of course, there is the vast majority of criminals who commit crime but are never caught. The state cannot punish whom it cannot find.

Are trials of unpunishable suspects pointless? They must be if criminal law is just about what it can do to defendants. But this narrow vision ignores other parties who have a stake in the outcome. It overlooks what trial can do for victims and society. Trial memorializes what happened in a credible official record of events. It allows victims, many of whom have no other meaningful platform, to testify and shape the narrative that entwines them with those who they allege wronged them. It can force society to reckon with its failure to protect and prevent. Most importantly, trial is an opportunity for the community, through its representatives, to express its judgment about what happened. Acquittal releases the defendant from suspicion. Conviction condemns his wrong and validates his victims. And none of these trial values requires that the defendant go to jail or pay a massive fine.

In short, trial can have meaning beyond being a pathway to imposing suffering on the defendant. This was on display a little over a year ago when, after Epstein’s death on the eve of trial, the presiding judge provided alleged victims one day of witness testimony before dismissing the charges. 

One witness stated that she would “not let [Epstein] win in death,” even though death protected him from any outcome the criminal court could bestow. Somewhat more common are cases involving defendants who, having initially appeared for trial, subsequently flee into hiding or to a foreign jurisdiction. When the justice value of trial is urgent enough, courts will appoint a defense attorney and allow the prosecution to proceed with its case, even though, punitively speaking, there’s no point.

This brings us back to Trump’s impeachment trial. It’s hard to do, but set him and all your feelings about him (pro or con) aside for a moment. The trial can’t really affect him anyway, but it can still affect us. Five people died during the Capitol riot. More than 100 police officers were injured. The basic fabric of our democratic institutions, not to mention the people and buildings that embody them, were threatened and profaned.

Starting this week, the Senate will determine to what extent Trump was responsible. More than that, though, the trial will recognize, grieve, memorialize, reflect and judge. It will not only judge the man, but also the moment. And there’s nothing pointless about that.

Mihailis Diamantis is an associate professor of law at the University of Iowa College of Law. Will Thomas is an assistant professor of business law at the University of Michigan Ross School of Business.