Senators sitting as impeachment jurors are supposed to be impartial and withhold judgment. But that’s more aspirational than realistic, as all 100 jurors are practicing politicians and six Democratic lawmakers are running for the White House in the hopes of beating President Trump in 2020.
House Democrats, who control the chamber, have indicated that they want to move quickly on bringing articles of impeachment, over the Ukraine whistleblower episode and potentially other matters. If impeached, senators will act as jurors in an impeachment trial and take an oath: ‘‘I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [President Donald Trump], now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’
The Constitution suggests that the Senate should consider legal matters beyond political preference when convicting a president on impeachment charges. Republican Rep. Thomas Massie of Kentucky wondered if this is possible with so many senators hoping to unseat Trump through the electoral process.
“Don’t senators running for POTUS have a conflict of interest regarding possible impeachment of an opponent? Shouldn’t they recuse themselves if it came to the Senate?” Massie tweeted on Oct. 2. “Wouldn’t anyone so positioned against a defendant be barred from serving as a judge or jury in a court of law?”
When asked if he would be able to faithfully execute the oath and fairly play the role as a juror in an impeachment trial even though he is running for president, New Jersey Sen. Cory Booker said he “absolutely” was capable.
“This is something entirely separate. Did he or did he not betray his oath, and did he or did he not create potential treason against this country and put his own interests in front of our national security interests? Those questions could be held independently,” Booker said in a Sept. 30 MSNBC interview.
While impeachment proceedings have an aura of legal consideration beyond political, it is nearly impossible to enforce impartiality.
“Even if one were of the view that there is a tension between the oath administered to members, and indicia of prejudging the merits, there is no mechanism to constrain members,” James Sample, a professor of law at Hofstra University, told the Washington Examiner.
“If we disqualified everyone who had preexisting opinions about Donald Trump, there would be no senators left to try the case,” Mike Seidman, a law professor at Georgetown University, told the Washington Examiner.
Democrats hoping to challenge Trump are also not the only senators at risk of appearing to act impartially during a Senate trial. Republican Senate Majority Leader Mitch McConnell suggested that he will vote against convicting.
“An impeachment trial is nominally a trial, analogies to judicial impartiality are of limited value vis-a-vis proceedings that are ultimately more political than legal,” Sample said. “Accordingly, while a judge who prejudged the merits and committed himself or herself to a particular outcome, as Sen. McConnell and other senators have in their remarks, would be disqualified, senators are not similarly constrained.”
A Trump impeachment trial would not be the first time that electoral partisan electoral interests directly intersected with an impeachment trial. Three House members were elected to the Senate in the midst of impeachment hearings against President Bill Clinton in 1998 and became senators before Clinton’s January 1999 Senate trial: Democrat Chuck Schumer of New York and Republicans Mike Crapo of Idaho and Jim Bunning of Kentucky.
Ultimately, a senator’s decisions to say that he or she will be impartial during an impeachment trial, or state that they will vote yes or no will have only political consequences, if any. Some Democratic candidates are willing to take the political risk of appearing impartial, instead using the assertion that they would vote to remove Trump from office as a feather in their cap for their presidential bids.
Though the House has not yet revealed any articles of impeachment or held arguments about specific charges, Massachusetts Rep. Elizabeth Warren said on Friday that she will vote in favor of convicting Trump and removing him from office. California Sen. Kamala Harris on Friday resisted saying how she would vote on in anticipation of a Senate trial, but on Monday said that she would be a “yea” vote.
“Based on everything we know, including an admission by this president, I don’t know that it leads in any other direction except to vote yes,” Harris said.
