Senate Democrats can’t get their message straight. Is the Senate impeachment process like a court trial with senators serving as impartial jurors? Or is President Trump axiomatically as guilty as sin?
Ahead of the Senate trial, Majority Leader Mitch McConnell, in a moment of candor, declared, “I’m not an impartial juror. This is a political process. There is not anything judicial about it. Impeachment is a political decision.”
Pretending to be shocked (shocked!) to learn that the Senate was a political body, Minority Leader Chuck Schumer, who is himself one of the most egregiously partisan members of that body, fumed, “Mitch McConnell said proudly he is not an impartial juror. The American people want Mitch McConnell to be an impartial juror in this situation.” He went on to urge Republicans to make the same pledge of impartiality.
Senate Democrats didn’t seem to get the memo. Sen. Mazie Hirono announced herself a “yes” on removing Trump from office before the trial even started. Adopting a guilty unless proven innocent standard, Hirono declared, “What I want to hear from the president is, what are his defenses? Does he have any explanation that exonerates him? Short of that, I’m going to vote on the basis of the facts. And the facts are that he committed an impeachable act, and I will vote to convict him.”
While other Democrats avoided explicitly declaring themselves a “yes” on removal up front, they still made it clear that, in fact, they have already decided he is guilty. “There is clear evidence that President Trump abused his office and obstructed Congress,” Sen. Michael Bennet said.
Sen. Richard Blumenthal likened Trump to a criminal, saying, “The case is clear: President Trump tried to trade away our national security for a personal political favor. Merely soliciting a bribe is bribery. Ineffective criminals are still criminals.”
In an actual impartial trial, if during the voir dire process a juror said he or she would vote to convict unless something totally exonerating was presented, or that the defendant is a criminal who totally did what he or she is being charged with doing, that juror would be instantly dismissed. The views being expressed by senators are disqualifying for impartial jurors.
But senators are not jurors. The Constitution makes this distinction clear when it states: “The trial of all crimes, except in cases of impeachment, shall be by jury.” The point was recently reiterated by former Sen. Tom Harkin, who raised an objection to the use of the term during President Bill Clinton’s impeachment. At the time, Chief Justice William Rehnquist ruled, “The Senate is not simply a jury. It is a court in this case. Therefore, counsel should refrain from referring to the senators as jurors.”
Harkin also notes that unlike senators, “jurors in a criminal trial cannot ask questions, cannot raise objections and cannot discuss the case outside the jury box with the press or interested parties; jurors only try the facts as presented.”
The reality is that nobody is going to be impartial on impeachment. Democrats are out to inflict maximum damage on Trump during an election year, and voting to acquit him would be political suicide in nearly every Democratic primary. Likewise, few, if any, Republicans can afford to vote to remove a sitting president who is overwhelmingly popular within their own party.
Even the handful of senators in each party who are considered swing votes and may be legitimately undecided, such as Sens. Susan Collins and Joe Manchin, are going to make their final decisions based on whether they believe they have more to fear from the base of their own party or from the broader electorate in their states.
The myth of the impartial juror in this impeachment trial or any other is just that, a myth. When Democrats accuse Republicans of deciding how to vote before it’s all over, just know that almost all of them have already decided to vote that Trump is guilty. And others are only pretending they haven’t.
