It’s not often that I cite William Kristol favorably, but he and Jeffrey Tulis have an important piece in The Bulwark. It focuses on an important constitutional requirement of any impeachment trial.
The key to the system working as it should is the understanding that the Senate as a court of impeachment is a different institution than the Senate as usual. When the Senate moves to become an impeachment court, senators take a new oath. At that moment the institution transforms itself.
That’s why, according to Article I, section 3, clause 6 of the Constitution, senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation.” Of course, when elected to the Senate, all senators swear an oath to uphold the Constitution. But the senators, when sitting as a court, are asked to take an additional oath. It is a juror’s and judge’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.”
The exact wording of the oath could be changed, but the oath itself is the Senate’s answer to language of the Constitution itself. I don’t think modern Americans take oaths very seriously compared to our ancestors, but they used to be something people were very reluctant to break.
Mitch McConnell hasn’t taken this oath yet because the trial hasn’t begun, but he has already violated its spirit.
“Everything I do during this, I’m coordinating with the White House counsel,” McConnell said. “There will be no difference between the president’s position and our position as to how to handle this to the extent that we can.”
He added later that “exactly how we go forward I’m going to coordinate with the president’s lawyers, so there won’t be any difference between us on how to do this.”
And then he said that “I’m going to take my cues from the president’s lawyers.”
The reaction was predictable because McConnell cannot now plausibly swear to “do impartial justice.”
Some demanded that Mr. McConnell recuse himself.
“The moment Senator McConnell takes the oath of impartiality required by the Constitution, he will be in violation of that oath,” Representative Val B. Demings, Democrat of Florida, said on Friday.
There’s actually no shortage of Republican senators who have already indicated that they will be biased and partisan jurors. Ted Cruz and Lindsey Graham have gone so far as to publicly state that they will vote to acquit the president. They made those statements before they even read the House Judiciary Committee’s 568-page report explaining how Trump “betrayed the nation” which was released early Monday morning.
In an effort to create a fairer trial, Senate Minority Leader Chuck Schumer has sent a letter to McConnell laying out his requests.
In the letter, Mr. Schumer proposed a trial beginning Jan. 7 that would give each side a fixed amount of time to present its case, and called for four top White House officials who have not previously testified — including Mick Mulvaney, Mr. Trump’s acting chief of staff, and John R. Bolton, the president’s former national security adviser — to appear as witnesses.
Mr. Schumer also called for the Senate to subpoena documents that could shed light on the events at the heart of the charges against Mr. Trump: his campaign to enlist Ukraine to investigate his political rivals. And he set forth a specific timetable for each side to present its case, modeled on the one used when President Bill Clinton was tried in 1999. Mr. Clinton’s trial lasted about five weeks.
There’s no way McConnell can agree to these parameters and still maintain “no difference between the president’s position and our position as to how to handle this.” But, as Kristol and Tulis point out, McConnell isn’t a dictator and a small number of Republican senators can defect and compel the Senate to hold a trial that can pass the smell test.
But this project to undermine the norms of the Senate as a high court of impeachment is not a fait accompli. Mitch McConnell may be the majority leader of the Senate, but senators are not sheep. Or at least if they are, it is only by their own choosing. If three or more Republican senators now join Democrats in insisting that the trial be structured to be the kind of full and fair trial anticipated by the Constitution and by the Senate Rules on Impeachment Trials, they can do a lot to make a fair trial happen.
A small number of responsible Republican senators—probably only three, in fact—could form a constitutional caucus. Or a small bipartisan group of senators could form such a group. They can determine what the outlines of a full and fair trial would look like. Surely this would include some number of witnesses on both sides, not all of whom need have testified in the House.
As the House Democrats debate impeachment this week, they should not forget to hammer home these talking points. The senators will take an oath to deliver impartial justice, and that is only possible if they have a real trial and gather additional facts that have been withheld from the House. If they don’t, they’ll not only violate their oaths but they’ll become accomplices in obstructing Congress, which is one of the two impeachment articles.