Soon, U.S. Senators will be called upon to act as jurors, to take an oath separate and distinct from their investiture oath to uphold the Constitution. Rule XXV of the Senate Rules in Impeachment Trials provides the text of that oath: “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”
“Impartial justice” requires senators to apply the same standards to presidents of their own party as they would if the person on trial belonged to the opposing party. Also implicit is a mandate that a senator withhold judgment as to the guilt or innocence of the official charged by the U.S. House of Representatives until completion of the trial, until all the evidence has been fully presented. Thus, it is appalling that the senate majority leader would boldly announce that he and the GOP Senate caucus are in lock-step with the White House – as to “all things” having to do with the impeachment trial.
Last week Mitch McConnell gleefully told Trump whisperer Sean Hannity, “Everything I do during this, I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to how to handle this.” He flagrantly admitted he would take his cues from Trump’s lawyers, and positively beamed when announcing, “There’s no chance the president will be removed from office.”
Almost as appalling is Lindsey Graham’s shameless confession that he does not intend to be a “fair juror,” and will not pretend to be one. This is such a far cry from Graham admonishing his colleagues at the time of the Clinton impeachment “don’t decide the case until the case’s end.” How can he and Moscow Mitch raise their right hand and swear an oath to “do impartial justice,” when they have announced they intend to undermine the concept of impartial justice at every turn?
As troubling as these declarations of presidential fealty are, I find a slim ray of hope in the notion that McConnell and Graham may have gotten out over their political skis. Their sham trial may prove to incriminate Trump in the eyes of many Americans in a way that a real trial with oath-honoring senate jurors never could. Polls and surveys tell us that many of our fellow citizens have not yet made up their minds on the issue of whether Trump should be removed from office. I doubt they will be impressed as it becomes ever more evident that Trump has no evidence, no facts to support his ill-defined, shape-shifting defense. If he did, McConnell wouldn’t need to turn the Senate into a kangaroo court.
People may not have followed every twist and turn in the impeachment process and may have found some constitutional law concepts elusive, but most rank and file American voters know justice – and injustice – when they see it. Since the 1950's, they’ve watching everything from Perry Mason to Law and Order, and hundreds of thousands of them have served on real juries. They have taken a solemn oath to be fair, to weigh the facts, and follow the law, to put aside any personal feelings. In my experience, with only rare exceptions, they take that oath very seriously. They will be troubled by senators who treat their oaths as perfunctory soundbites.
Often judges emphasize the importance of the jurors’ oath by instructing them along these lines: “You, as jurors, are the judges of the facts. You must not substitute or follow your own notion or opinion as to what the law is or ought to be. It is your duty to apply the law as I explain it to you, regardless of the consequences. It is your duty to base your verdict solely upon the evidence, without prejudice or sympathy. That was the promise you made and the oath you took.” Chief Justice Roberts, who will preside over the Senate trial, would be well-advised to make such a statement, even knowing it will fall on many deaf ears.
I predict McConnell’s scheme for a down and dirty trial and quick vote of acquittal will not play well in Peoria – or anywhere else for that matter. I am reminded of the juror in the Paul Manafort trial who, though she was a strong Trump supporter, had voted for Trump in 2016 and planned to vote for him again in 2020, voted to convict Mr. Manafort. When asked why she parted ways with the president who had called the Manafort prosecution a “witch hunt,” the juror calmly replied in words to this effect: “It was my duty to listen to the evidence and follow the law.”
Would that McConnell and Graham had half the honor and integrity of that Manafort juror. But now it’s too late for them to play it straight. They have shown their hands. I believe the American people (at least those not indoctrinated by Fox) will see through McConnell's and Graham's farce. Rather than exonerate the president, the GOP machinations and corruption will only underscore the president’s guilt; the stench of Trump’s treachery -- and theirs -- will grow.