Editors’ Note: Some material adapted from Take Care, December 19, 2019, which comments upon a wide range of legal issues. Given the pre-hearing statements of the Senate Majority Leader, the public may wonder how this panel of 100 jurors will conduct themselves. The required oath is, at least, a starting point.
While House GOP opponents to impeachment shouted Red the Transcript!, we believe the better slogan, for the Senate GOP, is: Read the Senate Oath.
The Constitution gives the Senate the “sole Power to try all Impeachments” (Article I, section 3, paragraph 6). This is a political process only in the sense that an elected branch of government, rather than the courts, exercises judgment. In all other respects, the Constitution makes this a legal process. The Constitution specifies the relevant legal standard — “Treason, Bribery, or other high Crimes and Misdemeanors” (Art. II, section 4). In the case of Presidential impeachment, the Constitution specifies that the Chief Justice shall preside at the Senate trial.
Most strikingly, Article I, section 3, clause 6 specifies that Senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation.” Senators all swear a general Oath to uphold the Constitution, but the Oath taken in impeachment trials is more finely tuned. It is a juror’s oath, not a legislator’s oath. Rule XXV of the Senate Rules in Impeachment Trials provides the text: ”I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.” [Emphasis added.]
The Senator’s Oath in impeachment trials addresses the tension between the political and legal character of impeachment. The requirement of “impartial justice” means that every Senator must decide from behind the veil of ignorance — that is, as if he or she did not know the party affiliation of the person impeached.
The Senator’s Oath in impeachment trials addresses the tension between the political and legal character of impeachment. The requirement of “impartial justice” means that every Senator must decide from behind the veil of ignorance — that is, as if he or she did not know the party affiliation of the person impeached. This includes evaluating the evidence, and deciding whether the proven misconduct justifies removal from office. Senators violate their oath if they apply friendlier standards to Presidents of their own Party than to those of the opposing Party. [Emphasis added.]
So, what are we to do about senators such as McConnell and Graham, who have already loudly proclaimed their loyalty to the President and his acquittal, irrespective of what transpires during the Senate trial?
How might the public understand votes of the 100 Senate jurors with respect to requests by some for additional witnesses and documents? The statement of the Majority Leader that he will work closely with White House counsel who will be present to represent the defendant President? Failure to conduct a fair trial will clearly have political consequences for some of the jurors; however, the most serious damage could be the trust of the voting electorate and its investment in a fair nation.