Could the fate of the Senators who vote to convict President Trump be a “mansion in Hell”? Well, read on, bearing in mind that impeachment is the easy route to blocking Mr. Trump’s ability to make a comeback. Now that he’s out of office, after all, he could be put in the dock in ordinary criminal court for incitement of insurrection, same as the impeachment charge. An ordinary court would get the same result but is just harder.
The Democrats’ aim in impeachment is to disqualify Mr. Trump from further office. The Senate, according to the Constitution, can do that by a simple majority vote if it convicts him. Plus, too, conviction in the Senate requires only a two-thirds majority. The United States code — Title 18, Section 2383 — is crystal clear that incitement of insurrection is a statutory crime and disqualification is part of the statutory punishments.
Here’s the language that a regular federal prosecutor could cite from the U.S. code: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
Our guess is that a prosecutor could get a grand jury to indict Mr. Trump on an incitement of insurrection charge faster than you could say “ham sandwich.” Convicting him, though, could be more difficult than in the Senate. For in court the jury has to be unanimous and the burden of proof — “beyond a reasonable doubt” — is much higher than the burden that the prosecution would have to meet in the Senate.
There’s some history of note. A Yale law professor, James Q. Whitman, writes that at one time, judges were ruled by the fear of God. Judging was “spiritually dangerous.” Doctrine held that a judge who erred built himself a “mansion in Hell.” To be a juror in England in earlier times meant to “pawn” one’s soul and to be “liable to the Vengeance of God” upon one’s “Family and Trade, Body and Soul, in this world and that to come.”
Under that kind of injunction, jurors were apparently loath to convict (who could blame them?). So emerged the more relaxed burden of “beyond a reasonable doubt.” In our secular age, it’s the premier protection a defendant gets. Unless one is tried in the Senate, where the Constitution sets no standard. This was marked, a dispatch in Roll Call recalls, in the impeachment trial of Judge Harry Claiborne in 1986.
Claiborne was the first person convicted of a crime while serving as a United States judge. He was in the big house for bribery and still drawing his judge’s pay when he was impeached. His defense asked for the standard of “beyond a reasonable doubt.” The Senate, underlining the political nature of impeachment, denied the motion by a vote of 75 to 17. Only then was he convicted and removed from the bench.
So what kind of standard will the Senate apply when Mr. Trump is put in what amounts to its dock? The Constitution sets out the basics of impeachment. The House has the sole power of impeachment, that is, of accusing; the Senate has the sole power to try an impeachment. Senators sitting for impeachment “shall be on oath or affirmation,” but to what? The parchment doesn’t say; no burden is specified.
We don’t seek to address here the broader political and constitutional questions of whether the Senate should be trying Citizen Trump at all. Constitutionalists are not unanimous that the Senate can do this, and political sages differ on whether it’s smart for the Democrats, including Mr. Biden. They risk, after all, making a martyr out of the defeated Republican just as he sets out to solidify his base into a “movement.”
Our purpose here is merely to note the enormous incentive that obtains for the Democrats who now control the Senate to shuck the burden of “beyond a reasonable doubt,” convict Mr. Trump, and disqualify him from further office. It’s the easy way out. Otherwise, to achieve their goal of disqualifying him, they’d have to indict him and convince a jury. And do so beyond the last reasonable doubt, while leaving poor the judge to risk the mansion in Hell.
Correction: 2383 is the section of Title 18 of the United States Code that deals with incitement of insurrection; the number was transposed in the bulldog.