Senators hearing US President Donald Trump’s upcoming impeachment trial should be guided by their oath of impartiality, not public opinion polls, argues Alexandra Dufresne, an American lawyer based in Zurich.This content was published on January 16, 2020 - 14:00
A lot has been written about the impeachment proceedings against US President Donald Trump, including in Swiss media. In general, the reporting and commentary has been thoughtful. However, there is an important Constitutional issue frequently overlooked or underemphasized: the special oath that each senator must take before participating in the impeachment trial in the Senate. This oath goes to the heart of American Constitutional structure and the rule of law.
The primacy of the oath
In the United States, members of the House of Representatives and the Senate take an oath of office, pursuant to Article VI of the US ConstitutionExternal link. In this oath, they swear (or affirm) to “support and defend the Constitution of the United States against all enemies, foreign and domestic. . . .”External link However, before an impeachment trial, under Article 1, Section 3, Clause 6 of the US ConstitutionExternal link, senators take an additionalExternal link oath.External link Under this oath, they “solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ____, now pending, I will do impartial justice according to the Constitution and laws: So help me God.” It is the only place in the Constitution in which an additional oath, separate from the standard oath of office, is mentioned.
Whereas prosecutorial discretion plays a role in determining whether the House should impeach the president if it finds that he committed “Treason, Bribery, or other high Crimes or Misdemeanors”, once the proceedings move to trial in the Senate, the only relevant question is whether the president’s actions, in fact, met the Constitutional standard. In determining whether the president’s conduct did, in fact, constitute “Treason, Bribery, or high Crimes or Misdemeanors”, senators play a role both similar, but not identical, to that of a jury (fact-finding) and to that of a court (deciding the law)External link; they are best understood as “triers of law and fact.” The Chief Justice’s role in the proceedings is relatively limited.
There are historical examples of senators honoring the oath of impartiality. Edmund Ross, a Kansas Republican, voted to acquitExternal link President Andrew Johnson, who was a disaster of a president but who had not, in fact, committed an impeachable offense. Senator Ross did so despite enormous political pressure from his party, constituents, and the press; indeed, Ross’s insistence on giving President Johnson, whose policies he opposed, a fair trial cost him reelection and led to social ostracism. Several Republican senators voted to acquit President Bill ClintonExternal link, despite considerable pressure from their party to convict.
Recent statements from senators from both parties suggesting that they already know which way they will voteExternal link are deeply inappropriate. (Opinions from senators from both parties on the wisdom and appropriateness of the House’s decision to impeach are technically not inappropriate, so long as they do not pre-commit the senator to vote a certain way at the impeachment trial).
Naturally, when politicians speak, they do not always make these careful distinctions, and so it is hard to tell if senators running for the Democratic nomination mean “I will vote to convict Trump because his conduct was obviously an abuse of power” (inappropriate) or “Based on what I know so far, and assuming no new evidence, I am inclined to convict Trump, but I have to wait to participate in the trial to be sure” (not inappropriate). Some senators have tried to pay lip service to impartiality while also appealing to their constituents, as did Republican Senator Cramer from North Dakota, who said,External link “While we in the Senate are going to be saddled with these partisan, sick articles of impeachment, I think it is important we give them a full, fair process and reach an appropriate conclusion which restores the integrity of the Congress.”
However, other senators have unequivocally communicated their willingness to break their oath, as did Senate Majority Leader Mitch McConnell, who famously said: “I am not an impartial Juror...Impeachment is a political decision.”External link
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Impeachment trials, unlike elections, are not about ‘the will of the people’
The American Founding Fathers, having recently fought a revolution to free themselves from the British monarchy, were focused, above all, on minimizing the risk of tyranny. As a result, they developed several Constitutional mechanisms to limit the power of the president: federalism, an independent judiciary, the Bill of Rights (added in 1791), and impeachment provisions.
The US Constitution is, in many respects, a counter-majoritarian document. There are all sorts of policies that the majority of Americans favor – and that might, in fact, be good policy – but that are unconstitutional. Some Americans might argue that the Constitution goes too far and that judicial review – the process by which courts determine the constitutionality of actions of the political branches – is undemocratic. Indeed, if one thinks of democracy as always following the will of the majority, it certainly is. But the US is a constitutional democracy for good reason. The framers of the Constitution were, understandably, terrified both of tyranny of a king and of “tyranny of the majority” or mob rule – that is, the risk that democratically-elected majorities would trample on the rights of unpopular individuals or minorities.
Similarly, the Constitution sets limits on the power of democratically-elected presidents. It makes no more sense to think of impeachment as “illegitimate” or “a coup” or as “overturning the results of an election” than it does to think of the First Amendment’s freedom of speech and religion, or the Fourteenth Amendment’s Equal Protection clause, as “overturning the results of an election” when a popular law is struck down as unconstitutional. Of course, the Constitution sets limits on the political system that it itself created. If the Founding Fathers had not wanted to give the House of Representatives the “sole External linkpowerExternal link” to impeach a president, then they would not have included those impeachment provisions in the Constitution. (Indeed, many countries, including Switzerland, do not have an impeachment mechanism).
Public opinion pollsExternal link: interesting, but irrelevant
As elected representatives in a representative democracy, Members of Congress exercise their own judgment in negotiating and voting on legislation; while there are some limited examples of “direct democracy” at the state level, at the federal level, citizens can vote only for representatives, not for laws themselves. That said, to be re-elected, politicians are naturally quite influenced by public opinion. Indeed, for most political and policy questions, such as the question of what the next tax rate should be, it makes perfect sense to pay attention to what voters want, as the Congress is exercising its core function: the legislative (law-making) function. Similarly, when deciding whether to exercise its prosecutorial discretion to impeach the president, it is reasonable for Members of Congress to take into account – in addition to many other factors – the opinions of their constituents, so long as these opinions are not based on extraneous considerations, such as whether they support or oppose the president’s policy decisions.
However, when it comes to the trial in the Senate, including decisions regarding who should be compelled to testify, the credibility of witnesses, how much weight to give the evidence, and the final determination of whether President Trump’s conduct meets the Constitutional standard requiring his removal from office, then senators need to abide by their oaths. This means they must conduct the trial, weigh the evidence, and consider the legal arguments as impartially as possible, regardless of partisan pressures, constituent demands, or public opinion polls.
Impartial justice and a fair trial
Inherent in the concept of impartial justice is the idea that one does not try to alter the baseline procedural ground rules to his or her own advantage. This is why parents spend so much time playing board games with young children: to teach them that fairness is a concept independent of whether one wins or loses. If all the relevant witnesses testify and two-thirds of US senators do not vote to convict President Trump, then so be it. Part of living in a constitutional democracy governed by the rule of law is accepting the outcome, even when you fervently disagree.
But it would be irrational – and in violation of the oath of impartiality – for the Senate to conduct a trial without hearing evidence from all witnesses who have knowledge of the events. President Trump has tried to alter the rules of the gameExternal link by prohibiting his staff from testifying before the House. Even President Nixon External linkdid not do that. Senate Majority Leader Mitch McConnell has similarly tried to mischaracterize Senate precedentExternal link to prevent key witnesses from testifying; to date, he has refused to say that even former National Security Adviser John Bolton would be allowed to testify.External link
The Constitutional Roadmap
I teach law to students in Switzerland. When discussing the US Constitution, drafted 232 years ago, we discuss which aspects of the modern world the drafters of the Constitution could not have foreseen: technological advances, modern firearms, social media, climate change, the Civil Rights movement, women’s liberation, large-scale immigration, nuclear weapons, and the outsized role the US – for good or ill – would play in matters of war and peace. Then we discuss which aspects the Founding Fathers did foresee: the corrosive influence of factions, the seduction and danger of populism and mob rule, the temptation on the president to become corrupted, especially in the field of foreign affairs, and above all: the risk of tyranny.
The framers of the Constitution gave us a map about how to resolve political differences, even in the worst cases: when the president is accused of abusing his power. They were perfectly aware that the more tyrannical the president, the less likely that person would be to respect the other branches or step down willingly. For this reason, they carefully drafted the impeachment provisions, sharing decision-making power between the House and Senate, separating the charging functions (House) from the trial functions (Senate), and requiring the senators to swear a special oath for good measure.
I want to believe that most US senators, regardless of party, revere the Constitution, as did the generations of Americans before us. As the impeachment trial unfolds and disputes arise, let American citizens – regardless of political beliefs – remind our senators of their special oath to “do impartial justice according to the Constitution and laws”.
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