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Elections

Senators Are Not Jurors

Unlike jurors who are instructed by the judge at the outset of their deliberation, each senator is imbued with the power to determine what constitutes an impeachable offense, and whether the prosecution has met that burden of proof.


- December 21st, 2019
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After calling for impeachment since January 2017, House Democrats formally (and unsurprisingly) voted to impeach President Trump on Wednesday evening, thrilling many of the less informed Wokes and filling them with hope that Trump finally would be removed from office.

But, sadly for them, it doesn’t work that way. Instead of removing him from office, the House vote simply tees up the next phase of the impeachment process: a Senate trial.

House Speaker Nancy Pelosi (D-Calif.) is now playing footsie with the Senate, apparently refusing to send over the articles of impeachment until the Senate sets the trial’s rules in a way she deems favorable to Democrats.

Because, of course, nothing about this is political. It’s about patriotism, as she told CNN. Yeah, sure.

In the meantime, here are some key facts about what should happen next.

The Senate Will Adopt the Rules for a Trial

There are not many detailed rules for impeachment in the Senate beyond the requirement for the Senate to hold a trial, and for the chief justice of the United States to administer it. There are no filibusters allowed, and debate on motions is strictly limited. The rules say nothing about witnesses, other than that 51 senators can compel anyone of their choosing.

The Senate’s rules also stipulate, however, that a trial begin almost as soon as the articles of impeachment are delivered from the House, and that the trial run continuously for six-days-a-week.

It’s that last part that is absolutely unacceptable to the modern Senate, which is notorious for working only two-and-a-half days a week and never on Fridays, much less on Saturdays.

For this reason, senators will work out a set of detailed rules in advance upon which they can all agree, just as they did with the Clinton impeachment 20 years ago. The rules likely will cover who can be called as witnesses, what motions will be tolerated, when the proceedings will start, and even how long the trial will run day-to-day.

All senators must agree before the trial can begin. This runs counter to much of the Left’s outrage this week, claiming that Majority Leader Mitch McConnell’s comments to Sean Hannity that he would work “in total coordination” with the White House were tantamount to “rigging” the trial.

Given that all senators have to agree on the rules of the proceedings, there is very little truth to this. If, for some reason, senators cannot agree, the trial will still proceed under the regular order—meaning six-days-a-week, with any calling of witnesses or passing of motions subject to a 51-vote threshold.

But if anything that brings Republicans and Democrats together, it is a bipartisan affinity for laziness. In other words, despite how each side will loudly spin the partisanship, Republicans and Democrats will both agree to a set of impeachment rules before the trial commences.

Senators Are Not Jurors

Many a senator has claimed the “juror” card as a means of sidestepping questions from reporters. Reporters themselves have seized on it, using it to lambast senators for partisanship when they are, ostensibly, supposed to be neutral.

The problem is, it’s all wrong.

Impeachment, by its nature, is a political process. It is not a criminal proceeding. Accordingly, though senators play the role of the jury, they are far from ordinary jurors.

This was confirmed during the impeachment trial of Bill Clinton, when Democrat Tom Harkin of Iowa queried it on the floor of the Senate.

“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.”

Harkin went on to make his case that “the framers of the Constitution meant us, the Senate, to be something other than a jury,” with reference to the Federalist, the Senate’s rules, and the Constitution itself, which provides in Article III that “Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.”

Chief Justice Rehnquist upheld Harkin’s point. “The Senate is not simply a jury,” he ruled. “It is a court in this case.” 

Rehnquist’s rhetoric underscores the critical—and expansively powerful—role that the Senate plays in impeachment. Senators are not merely neutral jurors. They act as the court, setting the rules for the trial, deciding what witnesses will be called, and disposing of motions. While the chief justice “rules,” in reality, he merely facilitates. Any of his rulings can be overturned by the Senate with 51 votes.

Put simply, the senators themselves—not the chief justice—have the singular power to decide every issue. The Supreme Court has also acknowledged this, emphasizing the Framers’ intent to “give the Senate exclusive interpretive authority” over its role in the trial.

Fidelity to “the Constitution and Laws”

Before the trial begins, senators take an oath to “do impartial justice according to the Constitution and laws.” This means, unlike what some hot takes suggest, Republican senators can and should defend both the constitutional institutions of the presidency and the institution of Congress, if they feel that either is under assault by the process—just as Democrat senators did during the Clinton trial.

Unlike jurors who are instructed by the judge at the outset of their deliberation, each senator is imbued with the power to determine what constitutes an impeachable offense, and whether the prosecution has met that burden of proof.

The Supreme Court put a finer point on it, noting that impeachment presents a “political question,” rather than a criminal one, and that authority for acquittal or conviction is “reposed in the Senate alone.”

In withholding the articles of impeachment, Pelosi is attempting to leverage both a chamber and a process over which she has no authority. As Senator Lindsey Graham (R-S.C.) quipped, “there is a reason one person can’t be speaker of the House and senate majority leader at the same time.”

From a constitutional standpoint, Pelosi’s actions “distort, ignore and violate the explicit terms of the Constitution that view impeachment by the House as a first step toward a trial by the Senate.”

From a political standpoint, however, it makes the House Democrats look even more nakedly craven and unserious. What Pelosi is truly afraid of, as Ben Domenech recently pointed out, is the bipartisan acquittal coming in the Senate, which will make a blatant mockery of the House Democrats’ case against the president—and make Americans wonder why the House wasted so much time on this in the first place.

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