Should senators arrive at the upcoming impeachment trial of Donald Trump professing their impartiality? Would anyone believe them if they did? A fundamental misreading of the impeachment process, the purposes of Congress, and the specific articles of impeachment have critics demanding the impossible, as well as the undesirable.
Senate Majority Leader Mitch McConnell set off a round of criticism for telling reporters earlier this week that he has no requirement to approach the process with impartiality. “This is a political process,” McConnell declared. However, he also added that he would balk at calling fact witnesses not already heard by the House in its impeachment hearings, in part because of concerns over partiality. “It is not the Senate’s job to leap into the breach and search desperately for ways to get to guilty,” McConnell said. “That would hardly be impartial justice.”
Which is it? According to Senate rules, senators have to take an oath or at least affirm that they “will do impartial justice according to the Constitution and laws.” That certainly lends to the impression that 100 elected politicians are supposed to leave partisanship at the door. Justice Ruth Bader Ginsburg took it one step further in an interview with the BBC’s Razia Iqbal. Not only should senators act like jurors, the Supreme Court justice insisted, they should also act like judges.
“So if a senator says I’ve already made my mind up and the trial doesn’t even exist at the moment,” Iqbal asked, “there is no accountability, is there?” Ginsburg quoted the late Chief Justice William Rehnquist in reply. “The day a judge stops being impartial,” she said, “and starts to do things to please the home crowd, whatever your home crowd is, that’s the day that judge should step down from office.”
That’s certainly true of jurists who serve life terms and have no accountability to voters. Does the same apply to those who can be held accountable in elections, and whose explicit job is to represent those voters? Of course not.
First, McConnell is correct in that impeachment is a political process, not a criminal or civil court case. The House of Representatives has the sole power of impeachment, which under any circumstances is a political judgment on whether an executive branch official has committed “treason, bribery, or other high crimes and misdemeanors” that require removal from office. That takes a simple majority vote, but removal requires conviction in the Senate by two-thirds of its members, which has to render a political judgment as to whether the House has made a convincing case for removal.
One need only look back to the impeachment of Bill Clinton to grasp this. In that case, the president had committed a clear statutory crime, perjury, in a civil sexual harassment case brought by Paula Jones. Clinton eventually admitted guilt, accepting a fine and a suspension of his license to practice law for five years. The issue in both chambers of Congress was whether that crime rose to the level of requiring removal from office, or whether its basis in personal conduct prior to his election rendered it essentially harmless to the office. The House impeached on a largely partisan vote, and the Senate declined to convict, also on a largely partisan vote, which was hardly coincidental to partiality among either the House’s “grand jurors” or the Senate’s “trial jurors.”
This impeachment involves even more political judgments, thanks to the nature of the core charge, “abuse of power.” While Democrats have discussed Trump’s conduct in terms of bribery and even treason, their article is limited by the fact that they have no direct evidence or testimony to a specific crime committed by Trump. Their case involves several witnesses who offered testimony that inferred an abuse of power in the handling of congressionally authorized lethal aid to Ukraine, but not of any statutory crime. The case for removing Trump therefore is entirely a political judgment as to what constitutes abuse of power in relation to foreign relations, as well as what rises to a level requiring removal from office.
The second article of impeachment alleging obstruction of Congress is even more tendentious and political. As law professor Jonathan Turley warned the House Judiciary Committee, the House had a duty to take their case for enforcing subpoenas to the courts in order to settle the dispute between branches. Alleging obstruction without any recourse to the judiciary and due process is “an abuse of power,” Turley warned, “an abuse of your power.” House Democrats argue that they are defending Congress’ constitutionally mandated oversight powers, but this article assumes parliamentary primacy over the executive such that any dispute necessarily violates the former’s prerogatives.
The legislature exists to settle political questions, not to act as either law enforcement or the judiciary. Its members are always accountable to their constituents, and this matter will be no different. This separates them from both the judiciary and the executive, which is why the process of impeachment was trusted them.
Even if strict impartiality was the standard, though, McConnell was hardly the first to fall short of it. Sen. Kamala Harris (D-Cali.) endorsed impeachment on Twitter a few hours ahead of the vote, and that wasn’t even her first time in doing so. In last month’s Democratic presidential debate, three of her Senate colleagues running for the nomination endorsed impeachment as well — Sens. Amy Klobuchar, Elizabeth Warren, and Bernie Sanders. Warren said she would exhort Republicans to convict, and Harris referred to Trump as “a criminal living in the White House.” Ginsburg’s impartial jury pool is thinning out on both sides of the aisle.
The demands for impartiality are really just a smokescreen for an impeachment debacle borne out of hyperpartisanship and personal animosity. What began as a politicized stunt will eventually end in a politicized stalemate, and voters will have the last word. As they should.
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