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Don’t put fuel on the fire

Jan. 11

The Wall Street Journal on House Speaker Nancy Pelosi and the impeachment President Donald Trump:

House Speaker Nancy Pelosi is barreling ahead on a vote to impeach President Trump this week–days before a new President takes office, and with the outcome and timing of a Senate trial uncertain. This is a moment for Joe Biden to establish his leadership by calling off the House impeachers in service of his vow that this is a “time to heal.”

We explained [Jan. 9] why Mr. Trump’s actions [onJan. 6] were impeachable offenses, and that the best outcome would be his resignation. It appears he won’t resign. But that doesn’t mean impeachment now is wise or good for the country if the goal is get past the Trump era. It may do more harm by letting Mr. Trump play the victim than good by stigmatizing behavior that most Americans already find unacceptable.

The first obstacle is timing. In [four] days Mr. Trump will be gone from the White House. A House vote this week means no fact-finding or time for a presidential defense. The Senate isn’t scheduled to reconvene until Jan. 19, the day before Mr. Biden is inaugurated. Even if Senators convene earlier, Republicans aren’t likely to hold a trial without giving Mr. Trump a chance to mount a defense, as other impeached officials have been able to do.

That leaves a trial to take place when Mr. Trump is no longer President. Views differ on whether the Constitution allows impeachment after a President leaves office, though this would be a first. Alan Dershowitz, the law professor and one of Mr. Trump’s impeachment lawyers in 2019, made a compelling case Sunday that this constitutional point would be part of Mr. Trump’s defense.

This assumes Democrats even want a Senate trial and the risk of a potential acquittal. Jim Clyburn, the third-ranking House Democrat, said Sunday the House might vote to impeach but then wait weeks or months before sending an article to the Senate.

If the goal is a quick rebuke, that makes no sense. It keeps the focus on Mr. Trump for months into Mr. Biden’s term, and to what end? Is the goal to hold a trial over the head of Republicans in case they oppose too much of the Democratic agenda?

Mrs. Pelosi says one of her goals is to sanction Mr. Trump so he can’t run again for President in 2024. But that requires a Senate conviction, which means a two-thirds majority, and an explicit declaration that he is barred from running. That goal is defeated without a conviction.

Mrs. Pelosi seems to know this because on Sunday she asked in a letter to her Members for thoughts on barring Mr. Trump from future office under Section 3 of the Constitution’s 14th Amendment. That language bars anyone from holding office who has “engaged in insurrection or rebellion” against the United States.

That language was aimed at members of the Confederacy after the Civil War. Courts up to the Supreme Court had ruled against Southerners who committed acts of war against the Union, such as raiding ships at sea.

No court has made a finding of insurrection against President Trump, so Mrs. Pelosi would be asking Congress to do that on its own. She’d essentially be hijacking the 14th Amendment to create another path to bar Mr. Trump from running again, and perhaps with a mere majority vote, not two-thirds as required by the Impeachment Clause. That would violate the Constitution in the name of defending it.

Add all this up, and impeachment now with a trial continuing into the Biden Presidency looks like political excess. It could let Mr. Trump compete with Mr. Biden for public attention, and give the then-former President a platform to rally his supporters. It makes more sense to let him repair in new irrelevance to Mar-a-Lago.

Which brings us to Mr. Biden’s leadership opportunity. One worry about the President-elect is whether he is strong enough to lead his party or will instead be led by the progressives on Capitol Hill. His statement last week that he is deferring to Congress on impeachment reinforced that concern, and he added Monday that he thinks the Senate can hold a trial and pass his agenda at the same time.

Perhaps, but a Trump impeachment and trial aren’t in Mr. Biden’s political interest. They would do nothing to calm partisan divisions and might turn off moderates who voted for Mr. Biden because they want the tumultuous Trump era to be over. It would make the first drama of his Presidency an act of retribution.

Mr. Biden can better set the stage for his inaugural by telling the public that he’d prefer if the impeachers stood down. He can say he thinks Mr. Trump’s behavior is impeachable, and that had it taken place earlier he’d support his ouster. But on the eve of the transfer of power and going into a new Presidency, it is needlessly divisive. He could say his goal as President is to move past the politics of polarization and annihilation, not to escalate it for another four years. Most Americans would welcome it.

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