As the Senate prepares for the coming impeachment trial on the articles passed by the House last month, Democrats and their allies in the mainstream media are gearing up for the proceedings by urging Republican lawmakers to act as impartial jurors.
South Carolina Republican Sen. Lindsey Graham garnered criticism last month when he rejected the idea and declared he would refuse to play jury as impeachment proceedings get underway in the upper chamber.
“I think impeachment is going to end quickly in the Senate. I would prefer it to end as quickly as possible,” Graham said at an event with CNN International in Qatar. “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.”
The reality is however, Graham shouldn’t be. The impeachment process is a primarily political trial put through Congress, not a criminal proceeding.
Republican Senate Majority Leader Mitch McConnell of Kentucky joined Graham in rejecting the idea of senators serving as impartial jurors in considering presidential removal.
“Anyone who understands American history or understands the Constitution knows that a senator’s role in an impeachment trial knows that nothing, nothing like the job of jurors in the legal system,” McConnell said on the floor of the Senate Friday.
While the political aspects of a quasi-jury are undeniable, it is neither entirely one of the other, but is instead something in between where senators have no obligation to forgo their biases in judging the proceedings.
Chief Justice William Rehnquist made this clear in his first ruling during the Clinton impeachment proceedings in 1999. At the start of the trial, Rehnquist upheld a challenge by former Iowa Democratic Sen. Tom Harkin that the senators ought not to be referred to as “jurors,” as did members of the House.
Harkin cited Section 2 of Article III of the Constitution stating, “The trial of all crimes, except in cases of impeachment, shall be by jury.” The Iowa Democrat argued that the clause mounted to “a tremendous exculpatory clause when it comes to impeachments.”
Harkin also pointed to Federalist Paper 65 written by Alexander Hamilton which outlined the founder’s justification for tasking the Senate with handling impeachment.
“There will be no jury to stand between the judges who are to pronounce the sentence of the rule and the party who is to receive or suffer it,” Hamilton wrote.
Justice Rehnquist agreed. “The chair is of the view that the senator from Iowa’s objection is well-taken, that the Senate is not simply a jury, it is a court in this case,” ruled the chief justice.
While the distinction might seem minor, it is a significant one. Democrats are attempting to apply pressure on McConnell and the Republicans in the Senate to conduct a criminal trial to re-litigate proceedings in the House that failed to bring any incriminating evidence to light. By pushing Republicans to serve as “impartial jurors,” who would then exonerate the president under the label regardless, Democrats creep closer to scoring additional witnesses at the trial to testify who should have been subpoenaed during the House proceedings.
The impeachment process itself might not be entirely political, but it is also not totally legal. The founders never intended for impeachment to become a political weapon wielded by the majority party in power to oust a president for made-up crimes, just as Democrats have done in the last year.