When a Chief Justice Reminded Senators in an Impeachment Trial That They Were not Jurors

With an eye on Trump’s impeachment trial, Steven Lubet points out that senators at such a trial are not the equivalent of a jury and are not held to a juror’s standard of neutrality.

Senate Majority Leader Mitch McConnell, R-Ky., fields questions from reporters about an impeachment trial in the Senate, Dec. 10, 2019. (AP/J. Scott Applewhite)

By Steven Lubet 
The Conversation 

Senate Majority Leader Mitch McConnell created a predictable stir when he told Fox News host Sean Hannity that he would structure the impending impeachment trial of President Donald Trump in “total coordination with the White House counsel’s office.” He added, “There will be no difference between the president’s position and our position as to how to handle this.”

This outright rejection of neutrality drew immediate protests from Democrats. Rep. Val Demings (D-Fla.), who may well be one of the House impeachment managers in the Senate trial, called for McConnell’s recusal, saying “No court in the country would allow a member of the jury to also serve as the accused’s defense attorney.”

House Judiciary Committee Chair Jerry Nadler (D-N.Y.) likewise slammed “the foreman of the jury” for saying he would “work hand and glove with the defense attorney.”

Demings and Nadler made a valid point, but they used the wrong analogy. Senators at an impeachment trial are not the equivalent of a jury and they are not held to a juror’s standard of neutrality.

Harkin’s Objection

The principle, that senators are not jurors in the traditional sense, was well established at the outset of the 1999 impeachment trial of President Bill Clinton.

Tasked with delivering an opening statement for the House Managers – who present the House’s case to the Senate – Rep. Robert Barr (R-Ga.) reminded the senators of Clinton’s tendency to “nitpick” over details or “parse a specific word or phrase of testimony.” To Barr, the conclusion was obvious: “We urge you, the distinguished jurors in this case, not to be fooled.”

That was the moment Sen. Tom Harkin, an Iowa Democrat, had been waiting for.

Mr. Chief Justice,” he said, addressing William Rehnquist, who was presiding over the trial, I object to the use and the continued use of the word ‘jurors’ when referring to the Senate.”

Sen. Tom Harkin, D-Iowa, raised a crucial point about senators’ roles in the impeachment trial of President Clinton in 1999. (AP/Joe Marquette)

Harkin had prepared well, basing his argument on the text of the Constitution, the Federalist Papers and the rules of the Senate itself.

He explained that “the framers of the Constitution meant us, the Senate, to be something other than a jury.”

Instead, Harkin continued, “What we do here today does not just decide the fate of one man. … Future generations will look back on this trial not just to find out what happened, but to try to decide what principles governed our actions.”

Chief Justice Weighs In

The Chief Justice sustained the objection.

“The Senate is not simply a jury,” he ruled. “It is a court in this case.”

Rehnquist thus admonished the House Managers “to refrain from referring to the Senators as jurors.” For the balance of the trial, they were called “triers of law and fact.”

Rehnquist and Harkin got it right. Article III of the Constitution provides that “Trial of all Crimes, except in Cases of Impeachment, shall be by Jury,” and for good reasons.

Chief Justice William H. Rehnquist, shown in this video image, presides in the impeachment trial of President Clinton on the Senate floor, Feb. 8, 1999, in Washington. (AP Photo/APTN)

In an ordinary trial, the jury’s role is generally limited to fact-finding, while the judge determines the scope and application of the law. In an impeachment trial, however, the Senate itself has the “sole power” to decide every issue.

Recognizing the Senate’s all-encompassing responsibility, and his own limited role, Chief Justice Rehnquist referred to himself throughout the proceeding only as the Chair.”

As the U.S. Supreme Court has put it, impeachment presents a “political question,” in which all of the “authority is reposed in the Senate and nowhere else.”

Oath or Affirmation Required

McConnell, the Senate’s leader, has more leeway and far more power than any juror or even a jury foreperson.

The Constitution’s only procedural limitation is the requirement in Article I that the senators be placed under “oath or affirmation.”

Although the Constitution does not specify any particular wording (unlike the presidential oath, which is included word-for-word), the Senate adopted rules for impeachment trials in 1986 requiring each senator to affirm or swear to do “impartial justice according to the Constitution and laws.”

“Impartial justice” does not demand the enforced naiveté of jury service, which would be impossible in an impeachment trial. For example, the senators all have prior knowledge of at least some of the facts, and several of them are currently vying to run against Trump in 2020, while others are backing his reelection campaign.

But the Senate’s oath of impartiality clearly calls for at least some commitment to objectivity. Thus, the problem with McConnell’s announcement was not that he failed to behave like a juror.

Rather, he has declared an intention to disregard the Senate’s prescribed oath, which was fixed long ago by the very body that elected him its leader.

When Tom Harkin disclaimed a juror’s role at the Clinton trial, his purpose was not to affect the outcome of the case, but rather to underscore the full scope of the Senate’s decision-making responsibility. In contrast, Mitch McConnell appears to have boldly renounced open-mindedness itself on the impeachment court, whether as juror, judge or “trier of law and fact.”The Conversation

Steven Lubet is Williams Memorial professor of law at Northwestern University.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

The views expressed are solely those of the author and may or may not reflect those of Consortium News.

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23 comments for “When a Chief Justice Reminded Senators in an Impeachment Trial That They Were not Jurors

  1. Rong Cao
    December 19, 2019 at 22:26

    In an impeachment trial, however, the Senate itself has the “sole power” to decide every issue — does this mean the 100 senators have more power than the chief justice Roberts who will serve as a judge in the senate court on President Trump’s impeachment trial?

    • Ed
      December 22, 2019 at 06:42

      As I understand it, the chief justice’s role is administrative, in that he presides over the proceeding. Unlike the role of a judge in a court trial who can direct a verdict, his role allows him to define terms but he doesn’t issue instructions to a jury because there is no jury in this kind of Senate trial. The Senators are the court. In a trial which has a judge, the judge is referred to as “the court”.

  2. Chet Roman
    December 19, 2019 at 15:41

    So the Republicans are supposed to just ignore and accept the House Democrats’ Soviet style show trial with secret meetings, denial of equal representation, denial of witnesses requested by Republicans, rules changes that were designed to limit the rights of the president and now their brazen lies they call the articles of impeachment.

    It’s time to respond to the Bolshevik’s 3-year coup attempt to not only to destroy Trump but to take political control of the nation without bothering to be elected.

    • Mark
      December 19, 2019 at 19:30

      The House does investigation and inditement, just like regular law enforcement and District Attorneys.

      No Trial has been held. That is the Senate’s job, and they appear to be ready and willing to shirk their responsibility on that point.

  3. David Colpo
    December 19, 2019 at 14:57

    In his book “Sellout”, Chicago democrat David Schippers documented how the 1999 impeachment trial of Bill Clinton was hampered by a pre-determined outcome. The only difference between how the senate handled that case and this is that the 106th senate was unanimously in favor of acquittal, whereas only one team is in favor of such a result.

  4. dean 1000
    December 19, 2019 at 14:47

    Senator Harkin is right that senators are not jurors. Chief Justice Rehnquist was mistaken to imply that trial jurors are not also triers of law as well as fact. Chief Justice John Jay(who was there at the beginning) said to the jury in the treaty trial (State of Georgia v. Samuel Brailsford 3 Dall.1) …”nevertheless you have the right to judge the law as well as the facts.”

    Alexander Hamilton, a monarchist, worried that impeachment could be political. It is inherently political as both the accusers and triers are politicians. The words of the 6th amendment give presidents the right to confront his accusers. So a president can put those who impeached him in the witness chair in the senate. Something impeachers might want to think about. A Martian’s lawyer could claim the 6th amendment applies to his client.
    I don’t know the full intent of those who promulgated the 6th amendment (the 1st congress). The words do not prohibit presidents from confronting their accusers. The Bill of Rights is two years later in time than the constitution it amends. So the normal rule should apply. A senate Leader with a majority is not bound by past rules.

    I am not a republican. I did not vote for Mr. Trump or Ms Clinton. This mess, given the two charges, is a colossal waste of time. I believe this impeachment is driven by the CIA and the neocons who overthrew the elected government of Ukraine. They fear Trump can undermine their dirty work. No president can do that. The Russians are slowly and surely reversing the effects of the coup. Washington’s coup makers can’t prevent it as the majority of Ukrainians are ethnic Russian.

  5. rosemerry
    December 19, 2019 at 14:24

    Marvellous article and all the comments too. Thanks CN and everyone.

  6. December 19, 2019 at 14:09

    What I find amazing in all this, is the Obama administration underwriting a coup in Ukraine. No one in DC admits to that. A sham it is!

    • Tim
      December 19, 2019 at 22:01

      “What I find amazing in all this, is the Obama administration underwriting a coup in Ukraine. No one in DC admits to that. A sham it is.” You must also be amazed how under POTUS 45 the USA is in the process of a underwriting coup in Venezuela. No one in DC admits to that either. A sham it is as well.

  7. John Puma
    December 19, 2019 at 13:40

    No matter what McConnell does, or not, in COLLUSION with His Hairness (aka “Trump”),
    there will be forthcoming ZERO of the 20 Republican votes necessary to convict HH.

    If the Dems had any nerve, instead of presumably play-acting their habitual, situational
    outrage to perfection, they would simply impeach McConnell, before the flames emanating
    from Pelosi’s nostrils subside.

  8. Skip Scott
    December 19, 2019 at 06:48

    As with Hillary’s DNC and Podesta emails and the lie of RussiaGate, the crux of this case is not Trump using his power as president to get “dirt” on Biden, it is the nature of the “dirt” itself. Biden threatened to withhold a billion dollar aid package to keep his son on the gravy train at Burisma and get the investigator fired. That is the core truth that should keep Biden from having a shot at the presidency. Instead, in this corrupt age, it is considered “business as usual.”

    I am no fan of Trump. Like nearly all the presidents before him in my lifetime, he has ignored his oath to uphold the Constitution (especially article VI) by repeatedly violating the Geneva Conventions , the UN Charter, and the Nuremberg principles. These are REAL impeachable offenses, but Congress dare not go down that road because ignoring the Constitution is a REQUIREMENT of the real rulers of Empire for holding the office of “Commander in Chief”.

  9. Eugenie Basile
    December 19, 2019 at 04:34

    Anybody still thinks impeachment is about justice being done ?

    • December 19, 2019 at 14:38

      Sure it is. Except that the august Senate has full power, defines what the crime is and what constitutes evidence, and that power is moderated by the limited penalty, namely, removing from an office, without sizing property or liberty. So this is rather sketchy as justice goes, but somehow, it is not proper to say “your impeachment is dead on arrival”.

      Actually, GOP could be wise to investigate the facts at some length. But the deep state instincts are would stop them from delving to deep into shenanigans of FBI and CIA. For example, one of the super suspicious characters working in Trump campaign, Carter Page, seemed to be an enthusiast of all things Russian, including, gasp, the leadership. Thus he was duly monitored, and since we exchanged a lot of emails, that gave a lot of material on Trump campaign, unexpectedly, of very little value. BUT! Apparently, FBI learned that Page is actually an agent (or collaborator?) of “another agency”, and his pro-Russian sentiments were originally a lure used in counterintelligence. That is apparently frown upon, perhaps it wastes resources of FBI to spy upon spies from other agencies.

      Perfesser Mifsud, a Maltese who plied Papadopoulos with rumors about Russia was another “Russia related figure” who is actually an agent of Western intelligence. And so is the earnest chap from Australia who was so aghast when Papadopoulos repeated the rumor that he immediately reported it to CIA.

      Many delicious facts there to uncover and mock, but I expect a light touch.

    • Eugenie Basile
      December 20, 2019 at 04:31

      Well the Republicans/Trump can now play the political game to their advantage… with a big win just before the 2020 elections
      I find it amazing that the Democrats always take the bait that Trump throws at them, like a bunch of senile piranhas.

  10. AnthraxSleuth
    December 19, 2019 at 03:12

    So, in the middle of a supposed hyper partisan impeachment, congress somehow managed to come together and overwhelmingly pass $768 billion for the MIC.

    • AnneR
      December 20, 2019 at 10:48

      Ukrainegate (impeachment charade) like Russiagate before it (but still there in the background) makes for excellent deflection and distraction from the fundamental socio-economic (i.e.corporate-capitalist-imperialist warmongering) agreement between the two-headed single party, dontcha think?

      If I recall right, it was during the hoopla farrago of the Russiagate hearings that Congress managed to pass that nice tax handout to the uber-rich (which includes lots of themselves) and do so with mucho Demrat support…

      And so this time round while the hoi polloi (Madison’s bewildered herd, i.e. us) were totally distracted, especially the comfortably off TDS infected Demrat supporters, by the latest effort to nail the Strumpet with impeachment via Ukrainegate, the MIC gets handed the biggest annual funding ever. And again with all but a handful of Demrats in full support of blowing other people’s lives to smithereens (so long as *they* and theirs aren’t affected, and the destruction, death and devastation remain far from these shores). More money into the piggy banks of their cronies; more baksheesh….

    • December 20, 2019 at 11:58

      AnneR: we have to wait and see, but Ukrainegate seems to have mediocre quality as deflection and distraction. One has to remember that so-called Battleground is infested by deplorable swing voters who could not care less about Ukraine, be it Lviv or Luhansk.

  11. John Drake
    December 18, 2019 at 23:08

    Considering McConnell’s stated prejudice and intentions as well as the partisanship endemic in the GOP ever since Gingrich’s “contract with America”; this whole thing may become a farce.
    As I recall from my conventional high school history-I’ve since become more educated, thanks Zinn-, impeached presidents wear that mantel like a scarlet letter in the annals of history. What is Andrew Johnson known for? Getting impeached even though he wasn’t convicted. Of course a more significant remembrance of history notes that it was he who reversed Lincoln’s plan to give each newly freed African a plot of land to work. Which was a much more significant historical note. And of course Clinton will be known for his sexual shenanigans and being dumb enough to lie under oath about it. Setting up the economy to be nearly destroyed is less noted in the MSM.
    What will Trump be remembered for? Being impeached to start. After that when he is out of office, hopefully numerous convictions for tax evasion, other nefarious business practices and even sexual molestation?
    The most disappointing aspect of this impeachment is that it doesn’t include the rampant violations of the emolument clause, violating the will of Congress in castrating most of the regulatory agencies and accessory to aggressive war in Yemen. Of course the problem with the latter is they all do it. Unjustified war is a bipartisan agreement.

    • JoeSixPack
      December 19, 2019 at 13:20

      “May become a farce” this whole impeachment thing **IS** a farce. It’s political theater. Trump will go down in history and as the only impeach President to be re-elected.

      The Democrats and Republicans are two store fronts run by the same business.

  12. Tim Jones
    December 18, 2019 at 19:26

    So far, this attempt to impeach is a mockery on both sides of the isle. The idealism of the framers and of the ideals of the Constitution requires our House and Senate to actually have ethics. Why wouldn’t the framers have considered a federal trial as a remedy for impeachment, knowing full well of conflict of interest and party affiiliations.

    • SteveK9
      December 19, 2019 at 11:35

      In this case, it is not a mockery ‘on both sides’. It is all on the Democrats. For the first time in US History, the losing side did not accept the results of the election. From that moment to this, a majority of Democrats have sought to overturn the result by removing Trump from office … by whatever means possible, including the fabrications behind ‘Russia-gate’, and now the absolute absurdity of ‘Ukraine-gate’, where Trump is accused of some vague ‘quid-pro-quo’ (he published the actual transcript) when the actual, and verified out of his own mouth, quid-pro-quo was Biden holding up $1B from Ukraine to force the removal of the Ukraine Prosecutor General investigating his low-life son, Biden.

      It was prophetic that Hillary never came out and conceded the election to Trump. By the way, one of the most disgraceful displays (or non-displays) I have ever witnessed. I’ve observed every election since John Kennedy, and that is the first time the loser did not congratulate the winner.

  13. December 18, 2019 at 16:14

    I suppose Mitch McConnell should have declared his impartiality then acted in an impartial way, as he will do regardless of any disclaimers he might have made. I think the House demonstrated how that works.

    • michael
      December 18, 2019 at 23:49

      The House refused to allow Republicans to call witnesses. With Republican control of the Senate, will Democrats be allowed to call witnesses or will they follow the House rules where McConnell, like Schiff, makes those decisions?

Comments are closed.