In an impeachment, the Senate’s role is to sit in judgment and vote either to convict or acquit the person charged. The Senators are the jury. No Senator is appointed to play the role of defense counsel. That role is undertaken by the President’s lawyers.
As jurors, when the impeachment trial begins, the Senators swear an oath to “do impartial justice according to the Constitution and laws: So help me God.’’
Now, no one expects any Senator, certainly not in the current environment, to be impartial when sitting in judgment of President Trump. However, there is a difference between Senators prejudging the case and Senators meeting with top White House aides, as reported recently in The New York Times, to discuss the strategy to be used for the impeachment trial.
That crosses the line between being a juror and being part of the defense team. Their action flouts all pretense of impartiality.
There is no precedent for this. In Nixon’s impeachment, the Republican leadership did not strategize with the White House; they (Hugh Scott, Barry Goldwater, and John Rhodes) went to the White House to tell Nixon that he faced near-certain impeachment because of eroding support among Republicans. As for Clinton, I could find no indication on the internet that Democratic Senators met with him to strategize his impeachment trial.
I would therefore argue that when the Senators are sworn in as jurors by the Chief Justice, the House managers of the impeachment should raise an objection with the Chief Justice that because of their strategizing with White House officials regarding the impeachment trial, such Senators should be barred from voting. They have disqualified themselves. Who are they? Senators Ted Cruz, Mike Lee, Ron Johnson, John Kennedy, and Lindsey Graham. Mind you, a majority of the Senate can overrule such a ruling by the Chief Justice; but McConnell has only 2 votes to spare.
Then there’s majority leader Senator McConnell. He recently stated that he’s “taking his cue” from the White House on how to run the impeachment trial. "Everything I do during this, I'm coordinating with the White House counsel." He made clear he would do everything in his power to quickly acquit the president.”
That without question also crosses the line. He has stated he’s going to be talking to the Democratic leader and others, but if the bottom line is what the White House wants, those other conversations make no difference. By running the trial the way Trump wants it run, he is abandoning all appearance of independence and impartiality. The trial must be set up to get at the truth.
Removal of these senators from the Senate jury would not likely change the result of the trial. With 95 senators voting, 16 Republican senators would still have to vote for impeachment, assuming a solid Democratic voting bloc. But their removal may embolden enough Republicans to vote for impeachment to at least provide a simple majority, if not the required 2/3 majority to convict. A bi-partisan majority in favor of impeachment would gravely weaken Trump in the 2020 election.
And it would send a very clear message that even in politics, some actions are beyond the pale. We have lost that faith under Trump. It needs to be reasserted.
