Whatever happens in the Senate trial, the Department of Justice should appoint a special counsel to investigate and eventually prosecute Trump criminally.

A Senate conviction would shame Trump for inciting the violent riot at the Capitol that killed five people. Insurrectionists threatened the lives of members of Congress, attempting to stop them from carrying out their constitutional duty to certify the election.

A conviction would also warn current and future government officials against similar transgressions and, most importantly, clear the way for the Senate to vote to exclude Trump from holding any future federal office.

But the odds of convicting him are negligible, given that 45 Republicans voted to cancel the impeachment trial as unconstitutional. And the risk of collateral damage from the trial is high.

A few days after the insurrection, a majority of Americans (56 percent) wanted Trump removed from office. That’s something Senate Republicans have weighed and evidently decided not to worry about because, sadly, many of their constituents seem to be okay with Trump’s behavior and the violence it provoked.

Republicans will avoid confronting the glaring evidence that Trump incited the attack on the Capitol, and vote to acquit. They’ll try to justify it by claiming the trial is a waste of time since Trump is no longer president, that it’s a continuation of a witch hunt and that it will deepen division.

They’ll also continue to argue that it’s unconstitutional. Even though that theory is at odds with precedent, seizing on it is an expedient way to try to look principled while ducking a conviction clearly demanded by the evidence.

Senate Republicans will use the trial as a platform for more pro-Trump rants like those we heard from Rand Paul and Jim Jordan.

They will make the corrosive lie that the election was stolen reverberate across the country yet again, inflaming the worst impulses of Trump’s base and encouraging more violence. Even a conviction carried by a two-thirds majority (50 Democrats and 17 Republicans) would almost guarantee more vicious attacks on those who voted for it.

In the best-case scenario (which is highly unlikely), the Senate would convict Trump, then vote to prevent him from holding future office. But not even that would be enough to hold him accountable for his many possible crimes. He must be criminally prosecuted for them. Otherwise, he’d be shown to be above the law, a toxic legacy from this aberrant and ugly period in our history.

Prosecuting Trump for violating federal law is the job of the Justice Department (whose position that a sitting president can’t be indicted no longer applies to Trump), and appointing a special counsel would be the best way of getting it done.

Special counsels are appointed to investigate and potentially prosecute suspected wrongdoing in delicate cases that could involve a conflict of interest for the prosecuting authority, or “other extraordinary circumstances.” Trump and the incendiary politics and threat of violence associated with him qualify as extraordinary circumstances.

DOJ has not ruled out prosecuting Trump and his enablers for their role in the insurrection and other possible crimes. But since prosecuting him is so fraught politically, assigning a special counsel would mitigate perceptions of political motivation and the risk of violence.

Since a special counsel’s work would take place out of sight of the cameras, it would be less apt to trigger more violence. To be sure, Trumpian media outlets won’t stop broadcasting rants like those from Paul and Jordan. But at least the special counsel process wouldn’t entail broadcasting more diatribes, as the Senate trial certainly will.

If Trump is indicted, then it’s a matter for the courts, which are also more insulated from politics and less vulnerable to the “witch hunt” charge than the Senate.

Even if the Senate convicts Trump, he still needs to be prosecuted. Failing to prosecute would be to hold Trump above the law and strengthen his pernicious influence over Republican lawmakers. It would be as though he never left.

Deciding to “just move on” would render the motto engraved on the west pediment of the Supreme Court—“Equal Justice Under Law”—meaningless.

With prosecution comes the possibility that Trump could go to prison, but that shouldn’t be unthinkable. Many Americans have been incarcerated for less serious, fewer and less damaging crimes. There are nearly 2.3 million people in federal and state prisons, among them several Trump associates and some of the Capitol invaders Trump incited.

Imprisoning Trump may well enrage his loyalists and risk more violence. But we’ll have to choose between risking that versus risking the rule of law and democracy.

The choice is extremely difficult. It’s also perfectly clear.

Neil Baron is an attorney who has represented many institutions involved in the international markets and advised various parts of the federal government on economic issues.

The views expressed in this article are the writer’s own.