Not if it sends a message to future presidents! A House majority, voted to impeach President Trump for incitement of insurrection and initiate a trial in the Senate, to begin only after Trump’s term of office ends on Jan. 20. Then the constitutional question arises about whether a President can be impeached after leaving office. Another basic question asks why impeach Trump.
Conservatives describe the impeachment exercise as pointless revenge which is neither principled, not concerned with justice and without concern for the future. As a scholar studying moral justifications of social and legal institutions, there are sound moral reasons for this impeachment to be completed even after Trump leaves office.
Impeachment and criminal law
Impeachment in American law, is not a criminal procedure, but is quasi-criminal. The justifications given for having criminal laws help us understand why this impeachment is necessary. Criminal law serves a variety of functions, incapacitating the criminal, through incarceration, serves retributive functions by forcing criminals to experience punishments proportionate to the crime and sets a limit about actions acceptable to society. Incapacitation cannot justify impeachment of a former President. Incapacitation should stop a criminal from repeating offenses for incitement of insurrection. Trump may be prevented from occupying office but can continue to speak and will not be undergoing punishment!
Punishment – moral condemnation
The last function of criminal law is to be able to justify the impeachment of an outgoing President. Criminal law identifies limits of moral disagreement through symbolic statements condemning certain acts as immoral. Democratic society citizens may not need to agree about political morality. They recognize that political opponents are entitled to their personal views, however misguided each party’s take these alternative opinions to be. Conservatives and liberals often regard each other as wrong, but remain leading members of their political communities. There are common points for society to make shared statement about the political respectability of certain practices or acts and criminal law is one means by which such statements are made. Imprisonment is not only an unwelcome punishment; it is a symbolic statement implying the criminal has done something shameful. The criminal or the impeached, may not actually feel ashamed. Criminal law says that the criminal ought to feel ashamed for having acted outside the realms of normal moral disagreement.
Politics after violence
We examine how legal institutes have reacted to this very serious political wrongdoing. After WWII, the Nuremberg Tribunals put Nazi leaders on trial, for aggressive wars and crimes against humanity. The punishments ranged from 10 years in prison to quick deaths by hanging, termed grossly inadequate and not matching the moral crimes of genocide and forced labor. The best justification of Nuremberg was not punishing Nazis, but to deter those following their footsteps. The trials identified the line beyond which political societies should not stray without being branded as shameful, not only now, but also in the future. Former POTUS Trump’s wrongdoing is not as deplorable as that of the Nazis but the moral purpose for impeachment, is similar to the need for Nuremberg. The impeachment of President Trump will make a definitive statement about what no president should do, set the moral limits for any Presidency , and send a message to future Presidents tempted to emulate Donald Trump.