McConnell is right: The Senate is no mere jury
Michael Lindenberger says the law of the land does not require impartiality in an impeachment trial, but it does envision hearing all the available facts.
Senate Majority Leader Mitch McConnell has insisted he won’t be impartial when it comes to President Donald Trump’s impeachment. Nor, he has said, is it his role to allow witnesses to be called so Democrats can strengthen the House’s case for Trump’s removal.
He’s both right and wrong — and so are Democrats who have raised hell over his comments, demanding that McConnell and other Republican senators, including Texas Sens. John Cornyn and Ted Cruz, conduct themselves as impartial jurors in Trump’s impeachment trial.
Put simply, senators aren’t mere jurors, and they aren’t impartial — nor are they meant to be.
Twenty years ago, during the impeachment trial of President Bill Clinton, Chief Justice William Rehnquist ruled that the House managers should stop referring to senators as jurors. He explained that senators were acting not as jurors but as “the court” — that is, as both judge and jury.
In a criminal trial, jurors are required by law to decide whether the facts of a case fit the elements of a crime, usually as spelled out in statute. If so, they are required to convict. A second phase of the trial, also strictly governed by statute, determines what punishment shall be imposed.
Impeachment is entirely different. Senators aren’t asked merely to decide whether the president is guilty. They must decide whether to remove the president from office, no matter how they feel about the evidence. Removal is an extraordinary step in a democracy. It’s a check against the power of the presidency but also a check against the power of the voters themselves.
That’s what historians mean when they note that impeachment is a political process, not a criminal one.
As for being impartial, senators aren’t expected to be impartial, either. Did anyone believe the House Democrats who impeached Trump were impartial? They may have believed their vote was in the national interest, but that doesn’t make them impartial. When Republicans turned on President Richard Nixon to voice their support for impeachment in 1974, or when a few Democrats joined Republicans to actually impeach Clinton in 1998, they weren’t being impartial or apolitical. They were making judgments that despite party loyalties the crimes alleged rendered the president unfit for office.
When the Clinton impeachment moved to the Senate, senators were asked to listen to the presentations from both sides and then decide if the president’s conduct warranted removal. In 1998, a majority of senators said it wasn’t. More than a century before, a strong majority of senators voted to remove President Andrew Johnson, but the votes came one shy of the two-thirds needed, so like Clinton, he was allowed to complete his term.
When the Senate holds the trial for Trump, probably in the next month or two, there will be no statutes that govern how the senators must vote, no equivalent of mandatory sentences or other guidelines. Nor is there any equivalent burden of proof, such as the “beyond a reasonable doubt” standard that applies in criminal trials. Just as the Constitution leaves it up to the House to determine on its own which “high crimes or misdemeanors” warrant impeachment, the Constitution leaves it to senators to adopt their own standards for what conduct warrants removal.
That’s why it’s a dangerous analogy to call for McConnell to confront the trial as if he and other GOP senators should act as impartial jurors. They are neither impartial nor jurors and not meant to be.
But McConnell is dead wrong about how he has said he plans to conduct the trial. At times he has said he’ll not allow additional witnesses to be called, no matter how important their testimony might be. Echoing him along these lines, Cornyn has argued that the Senate’s job is to hear the case prepared in the House — and not to help build the case against the president.
That’s wrong on every count. Senators aren’t mere jurors, but the Senate does set the rules for the trial. What judge would ever get away with telling parties to a trial that he’ll not allow any testimony from witnesses unless they were part of the grand jury proceedings? It’s absurd on its face.
It’s even more audacious when we consider that the reason the witnesses weren’t heard from in the House is because they were ordered by the president — that is, the defendant — to remain silent.
The Constitution gives senators final say on what warrants a president’s removal. There’s nothing to prevent a senator from making his or her mind up in advance. But refusing to allow any testimony that might make that decision less comfortable? That might make voters question their judgment?
That’s not just wrong. It’s cowardly.