What does ‘impartial justice’ mean to the Senate?
WASHINGTON >> In an era of reflexive tribalism, at a moment of maximal partisanship, how should we understand the meaning of the oath that 100 senators will soon take to do “impartial justice” in the impeachment trial of President Trump? Is the oath meaningless blather glossing over the certainty of a pre-ordained conclusion — or can it serve some useful function notwithstanding that reality?
It would be naïve to expect that impartial justice means justice untainted by political considerations. The framers entrusted the consequential decision of whether to remove a duly elected president from office to a political body. The requirement of a two-thirds vote of those present for conviction constituted a tacit acknowledgment that political considerations could not be removed; the super-majority requirement was a way to work around the natural human temptation to side with one’s own team.
It would be naïve, as well, to imagine that impartial justice connotes the open mind with which an ordinary juror approaches an ordinary criminal trial. In that situation, jurors would be stricken if they had a stake in the outcome of the case, a relationship with one of the parties, or pre-existing conclusions about the guilt or innocence of the accused.
In an impeachment trial, by contrast, the Senate is the ultimate tainted jury pool, inherently biased. Of course, many senators have already concluded how they will vote — not only Republicans, but Democrats as well. Anyone huffing over Republicans’ peremptory dismissal of the charges needs to take into account that numerous Democrats have already announced the opposite conclusion. Boasting over closed minds is as unattractive for one side as the other.
And of course, Republican senators will work with the president and his advisers as the trial proceeds, just as Senate Democrats coordinated with the Bill Clinton White House during his impeachment.
Still, it cannot be — it should not be — that the solemn admonition and the sworn promise to do impartial justice is devoid of content. It is in the nature even of politicians, some of them, anyway, to aspire to reflect their better angels. Senators have a way of worrying about that history thing.
For Democrats, dispensing impartial justice would mean soberly considering the implications of removing a president from office for the first time in history. That is no small step.
For Republicans, doing impartial justice would mean dropping the extraneous complaints about bad motives and unfair process that supposedly taint the impeachment inquiry and taking seriously the substantive charges against Trump. The rest is noise.
Why does it matter if Democrats were determined to impeach Trump from the start? Some were, certainly, but impeachment didn’t happen until the Ukraine episode surfaced. Likewise, even if the president was somehow denied due process in the House proceedings — he wasn’t; he rejected the process that was offered — a set of serious allegations is now before the Senate. Members have a constitutional duty to take those seriously even if they believe that the House did not perform adequately.
That leads to the most important issue the Senate faces, which is whether to hear from witnesses with information relevant to the charges against the president, and to obtain documentary evidence that Trump summarily refused to provide to the House. The matter of whether the House should have pursued its subpoenas is irrelevant at this point, with the Senate constitutionally obligated to conduct an impeachment trial.
The current festival of dueling, side-switching quotes from the Clinton trial in which Republicans asserted the importance of hearing from witnesses and Democrats dismissed the necessity obscures two key points. First, witness testimony was obtained in Clinton’s case; that sets a precedent. More important, the Clinton witnesses were far less essential. There was a full record of testimony and documents that is missing here. It is possible to conclude that there is enough evidence, even without it, to convict Trump. It is irresponsible to determine that he should be acquitted without hearing from such relevant parties as former national security adviser John Bolton and acting chief of staff Mick Mulvaney.
Doing impartial justice doesn’t compel a vote to remove the president from office. Republican senators are entitled to conclude that Trump’s conduct does not rise to the level of high crimes and misdemeanors. But their oath requires something more than an eager leap to that result.
That mandates not only grappling with the evidence against the president but, before dismissing it as inadequate, ensuring that the relevant information has been put before them, before the American people and, yes, before history.