Prosecuting a case in front of a trial jury comes naturally to Representative Adam Schiff, a former federal prosecutor and the lead House manager in the impeachment trial of Donald Trump. Schiff has urged senators to think of themselves as “impartial jurors” with a constitutional responsibility “to hold a fair and thorough trial.” But, more than a week into the trial, the question of the President’s guilt of the charges of abuse of power and obstruction of Congress has been upstaged by suspense over whether the Senate will vote to allow the process for examining evidence that we ordinarily associate with a “trial”—particularly, hearing witness testimony. Once the allotted time for speeches by both sides has run, and after senators have a chance to put questions to each side, Democrats want the Senate to issue subpoenas for evidence, while Republicans aim to move immediately to a vote to acquit.
For most of us, judicial trials are the primary template for addressing wrongs against society, but what a fair impeachment trial looks like remains uncertain. The Constitution gives the Senate “the sole power to try all Impeachments” but doesn’t specify what such a process consists of, other than that the senators “shall be on Oath or Affirmation,” that conviction requires the votes of two-thirds of the members present, and that the Chief Justice must preside when the President is tried. As long as those rules are followed, it is unlikely that any Senate impeachment trial will ever be declared unconstitutional, regardless of how unfair it may seem. The key precedent is Nixon v. United States, a Supreme Court case on impeachment that, confusingly, didn’t involve President Richard Nixon but, rather, a federal judge named Walter Nixon, whom the Senate convicted and removed in 1989, for giving false grand-jury testimony. In that case, the Court rejected the claim that the use of the term “try” in the phrase “try all Impeachments” means that a Senate impeachment trial must have some semblance of a judicial trial, including the hearing of evidence. (Kenneth Starr, then the Solicitor General, later the independent counsel in the investigation of Bill Clinton, and now a member or Trump’s impeachment-trial defense team, won the case for the government.)
“Trial” for impeachment and “trial” elsewhere in the legal system are effectively homonyms, whose meanings may diverge as the Senate majority wishes. But the public’s basic notions of procedural fairness, truth-seeking, and legitimacy are still stickily based on our expectations of trials in court—such as that witnesses will testify about the facts. So both parties have drawn on common ideas of what counts as a trial in order to support their arguments.
Trump’s defense team is hammering on a lack of “due process” in the House proceedings that led to impeachment, likening them to the railroading of an innocent without a chance to be heard. The criminal-justice template exerts a powerful pull on the popular imagination, and the defense has argued, too, that, because the articles of impeachment against Trump, “abuse of power” and “obstruction of Congress,” do not allege crimes—or, as the defense lawyer Alan Dershowitz has put it, “criminal-like conduct akin to treason and bribery”—they are illegitimate. (The articles of impeachment against Andrew Johnson, Nixon, and Clinton involved criminal wrongdoing.) This proffers a fig leaf for those senators who may believe that Trump did everything that is alleged but who still want to support acquittal. The solid weight of constitutional scholarship, however, has found that the Constitution’s impeachment standard, “Treason, Bribery, or other high Crimes and Misdemeanors,” clearly contemplates removal of a President who abuses the power of office for political gain, even if no crime was committed.
For Democrats, the news that John Bolton, Trump’s former national-security adviser, has written in a book manuscript that the President told him that he wanted to withhold aid to Ukraine until it agreed to investigate Joe and Hunter Biden, has bolstered the case that witness testimony should be part of any “fair and thorough trial.” Liberals also have complained about Senate Majority Leader Mitch McConnell’s commitment to conduct the Senate trial in “total coördination” with the White House. Early this month, Public Citizen, a consumer-rights advocacy group, filed an ethics complaint against McConnell, focussing on his December, 2019, statement, “I am not an impartial juror. This is a political process.” (Senator Lindsey Graham similarly stated, “I’m not trying to pretend to be a fair juror here.”) The nub of the complaint is that McConnell confessed intent to violate the oath that has been required of senators in impeachment trials since that of Andrew Johnson, in 1868: that they “will do impartial justice according to the Constitution and laws.”
Decision-makers’ attempt to be impartial is crucial to the legitimacy of the legal system. A jury trial, for example, is preceded by a voir-dire process, in which potential jurors are questioned on their ability to be impartial, so that those seemingly unable can be weeded out. But if a similar voir-dire process had preceded Trump’s impeachment trial, few members would have remained. The meaning of “impartial justice” in this context is different from whatever impartiality we purport to expect from jurors. But, as Public Citizen’s complaint explains, while we don’t expect senators to “pretend to be a blank slate evaluating impeachment evidence for the first time,” the oath still obligates them not to enter with “a locked-in conclusion based on partisanship, personal allegiance or political calculations.” Presumably, that’s what Schiff meant in reminding senators of their duty to “to hold a fair and thorough trial.”
It’s useful to recall that Senate Democrats once were reluctant to adopt the “juror” mind-set. During the impeachment trial of President Bill Clinton, Republicans pushing for conviction characterized senators as “jurors.” Democrats vigorously objected, even asking Chief Justice William Rehnquist to weigh in. As Senator Tom Harkin, Democrat of Iowa, who supported Clinton’s acquittal, argued, “Regular jurors cannot overrule the judge. Not so here. Regular jurors do not decide what evidence should be heard or the standards of evidence, nor do they decide on witnesses or what witnesses shall be called. Not so here. Regular jurors do not decide when a trial is to be ended. Not so here.” The Chief Justice ruled that counsel should “refrain from referring to the senators as jurors.” He explained, “The Senate is not simply a jury—it is a court in this case.”
Because a trial jury’s limited role is to find the facts—and the Democrats’ case is rather damning on the facts—it also serves Trump’s lawyers to liken the Senate’s impartiality obligation not to that of a trial jury but to that of a “high court,” which reviews legal mistakes in the proceedings of lower courts and invalidate decisions resulting from those errors. On Monday, Starr urged the Senate to do just that with the articles of impeachment, saying that the House had conducted an impeachment process riddled with procedural mistakes—namely, by failing to provide “due process for the accused”—and had thereby “inadvertently pointed this court to an exit ramp,” through acquittal.
At the heart of it, whether a President will be removed turns “primarily on whether Congress thinks it is good or bad for the country that he or she should be permitted to remain as chief executive,” as Frank O. Bowman III puts it in his book, “High Crimes and Misdemeanors: A History of Impeachment for the Age of Trump.” By constitutional design, the decision lies with a political body that is not as insulated from public opinion as the judiciary is expected to be, but that is supposed to be less immediately responsive to constituents’ demands than the House. Both sides in Trump’s impeachment trial are banking on the idea that challenging the process will help their side. Despite the utter lack of suspense as to acquittal along party lines, Democrats can benefit by attributing that eventuality to the Senate’s refusal of fair process. And because Republicans also know acquittal is assured, notwithstanding the President’s perfidious conduct, they save face by casting acquittal as the response to the House’s denial of fair process. Perhaps what that confirms is that the underlying facts of Trump’s wrongdoing and his denial of them are less compelling fodder in the impeachment court of public opinion than the conduct of Congress itself.
