The impeachment crowd thinks it has a silver bullet. Sen. McConnell recently stated he was coordinating the impeachment in the Senate with the White House, and admits it is a political process. Cue the howls of outrage. How dare he! Democrats go full-on Greta Thunberg in scowling.
McConnell they say, has violated his oath and must henceforth recuse himself. Article 1 of the Constitution states that senators sitting on trial of impeachment “shall be on Oath or Affirmation.” And the Senate Rules provide this oath as “I solemnly swear [or affirm, as the case may be] that in all things appertaining to the trial of the impeachment of [the person being impeached], now pending, I will do impartial justice according to the Constitution and laws: So help me God.” (RELATED: Mitch McConnell Admits: ‘I’m Not An Impartial Juror,’ Calls Impeachment ‘Political Process’)
There’s one problem: the impeachment hasn’t started yet and no senator takes this oath until all the rules of the trial have been voted in place; then the proceeding is turned over to the Chief Justice and he swears in the senators. At that point what exactly is “impartial justice”? Is it already making up your mind about a case, as Chuck Schumer has done, calling the evidence overwhelming against Mr. Trump? What about the similar oath judges take of impartiality? Doesn’t Ruth Ginsberg pretty much have her mind made up on every case ahead of time, and get celebrated for it?
In point of fact, “impartial” is a pretty low bar. Legally it just means promising to judge a case by the evidence, or lack of it, when it is actually presented to you. Nothing is said about coming into a case with ideas or preconceived notions ahead of time, which judges do all the time. Trial judges must deal with similar issues in the courtroom day after day and they see a slew of prejudicial material all the time. In many cases, they have a matter “remanded” to them by a higher court as a sort of “do-over.” So we often have a good idea ahead of time what a particular judge thinks about a cause of action, but that in no way disqualifies them as partial. Thus, even the most partisan senator can probably take the impeachment oath in good conscience.
And that’s the way it is supposed to be. Alexander Hamilton devoted the entire Federalist 65 to explaining why the trial of impeachment is best left to the Senate, as a political body, rather than the Supreme Court composed of judges:
“The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused… The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.”
As Hamilton explained, the Senate in the Founders’ design, would be both a political body but also a deliberative one, and therefore ideal for balancing the tricky sort of interests at play in an impeachment. (RELATED: Mitch McConnell: Adam Schiff’s Impeachment Timeline Is ‘Antithetical To American Justice’)
Sadly, the people howling for Trump’s scalp have no interest in the “due weight to the arguments.” As Mr. Trump points out in his letter to Nancy Pelosi, he is being charged with Obstruction Of Congress, merely for asserting his well understood presidential privileges in court. “Under that standard, every American president would have been impeached many times over.” The response from the other side is: any mention of separation of powers is an attempt by Trump to make himself a king, as in Prof. Karlan’s unfunny joke or Jonathan Chait’s predictably lazy piece. All debate other than Orange Man Bad, is apparently beneath them.
Meanwhile, don’t expect the silly claims about Sen. McConnell to slow down what’s already being planned for the Senate trial. The GOP leader is the most methodical person in Washington. He probably already has the 51 votes he needs to wrap up an impeachment rules package with no witnesses and an initial summary judgment motion. And on that motion, this ridiculous impeachment spectacle will end.
Frank Friday is an attorney in Louisville, KY.