Impeachment

Lindsey Graham, Elizabeth Warren, and the Impeachment Trial Oath

|The Volokh Conspiracy |

The Constitution specifies that the "Senate shall have the sole Power to try all Impeachments," and that when "sitting for that Purpose, they shall be on Oath or Affirmation." The Senate rules have long specified the oath that the senators will take at the start of an impeachment trial. They will each have to affirm that "in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws."

Things are about to get a little awkward. Lindsey Graham has apparently committed himself to being the most sycophantic senator in the Republican caucus. Thus, as the House prepares to impeach the president, Graham felt the need to publicly declare, "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" and "I've clearly made up my mind, I'm not trying to hide the fact that I have disdain for the accusations and the process."

But Graham is hardly alone. Republican senators have been badgered for months on the question of whether Trump should be impeached and removed—often by those hoping they would say, "yes." Some have demurred. Some have clearly indicated that they expect to vote to acquit. Democratic senators are no different. Elizabeth Warren has been calling for the president's impeachment and removal for months. Others have likewise found it to be politically expedient to show that they are card-carrying members of "the resistance" and want Trump to be ousted from office as soon as possible.

This has led to some silliness, such as the suggestion that Chief Justice John Roberts should refuse to allow Lindsey Graham to participate in the Senate trial or that the Democratic senators running for the presidency should recuse themselves. No one should hold their breath waiting for individual senators to recuse themselves or for the Senate as a whole to vote to recuse any senator. Each and every senator, from the most dedicated Trump loyalist to the most fierce Trump critic, will have the opportunity to vote on whether the president should be convicted of high crimes and misdemeanors.

We've seen worse conflicts of interest. When President Andrew Johnson was put on trial in the Senate in 1868, the senators who sat in judgment of him were not exactly disinterested parties. The Republican Congress had set up the impeachment by passing the Tenure of Office Act, over Johnson's veto, barring him from removing Cabinet members without the consent of the Senate and including in its terms that any violation would be a "high misdemeanor." Republican senators gave instructions to Johnson's secretary of war as the president sought to fire him, and thus played a key role in the very event that was the basis of the president's impeachment. Ohio senator Benjamin Wade would assume the office of the president if Johnson were convicted. Tennessee senator David Patterson was the president's son-in-law. Both were allowed to participate in the trial. The right of their constituents to have their representatives in Congress participate in the impeachment and trial of the president was understood to be far more important than the right of the president or the House to exclude senators who might be less than impartial judges. Legislators have sometimes asked to be excused from voting in such proceedings, but they have never been disqualified from doing so.

The Senate impeachment trial is not like an ordinary judicial trial. Senators are understood to already be familiar with the case by the time it reaches their chamber. They are not shielded by the rules of evidence from hearing the kinds of testimony or seeing the kinds of documents that might be regarded as too prejudicial in an ordinary courtroom. They are not expected to be sequestered so as to avoid publicity regarding the case. They are not instructed to avoid discussing the case with others. Senators can expect to be relentlessly lobbied by their constituents, their colleagues, the media and others up until the moment that they cast their final vote. The Senate took a recess during Andrew Johnson's trial so that the senators could attend the Republican national convention, which nominated Ulysses S. Grant for the presidency and debated whether to endorse the impeachment and whether to condemn the Republican senators who would not vote to convict.

The senators are not jurors in a legal trial. They are political actors charged with the task of inquiring into an officer's alleged misconduct and taking whatever action might be necessary to secure the public interest (constrained by the constitutional limit of removal and disqualification from office—no beheadings allowed).

The senators have a duty to do impartial justice according to the Constitution in the impeachment trial of the president. That surely means, among other things, that they have a duty to vote to acquit if they believe that the president has not committed an impeachable offense under the Constitution. It means that they have a duty to conduct a trial that provides both sides an adequate opportunity to present their case. They have a duty to consider the evidence and the legal arguments that are relevant to determining whether the president has committed an impeachable offense. They have a duty to vote to convict if they believe that removal is constitutionally justified.

That does not mean that they have to wait until the formal start of a trial to start assessing whether an officer has committed impeachable offenses or limit their deliberations to the specific evidence and arguments that the House managers and the counsel for the president might present on the Senate floor. That does not mean that they have to sit for the impeachment trial with an open mind and no prejudgments on the merits of the case. That does not mean that they have to refrain from making public statements about an officer's conduct.

It is readily imaginable that an officer might commit obviously impeachable offenses in broad daylight and in plain sight of all the members of Congress. In such circumstances, the House might rush to impeach with no elaborate investigation, and the Senate might rush to convict with no extended deliberation. No one imagines that the senators do not know what everyone else knows.

It is to be expected that when attempting to impeach a high government official like the president that the House will spend substantial effort trying to develop its case in public before taking a vote to impeach precisely in order to build political momentum behind the impeachment effort and establish a public justification for taking that grave step. No one expects the senators to be less informed about what the House is up to than the average voter back home.

When the transcripts of the White House tapes were released, revealing the extent of President Richard Nixon's complicity in the cover-up of the Watergate break-in, senators did not hesitate to publicly express their belief that the president had engaged in serious misconduct. In the final days of the Watergate crisis, the president was visited by a group of Republican congressional leaders, including Senator Barry Goldwater and Senate minority leader Hugh Scott. They were there to deliver the bad news that Nixon's support in the Republican ranks in the House and Senate had collapsed. Nixon resigned shortly after Goldwater and Scott told him that he would not have enough votes in the Senate to win an acquittal. No one thought the senators were failing to do their constitutional duty by not reserving judgment until a Senate impeachment trial. The senators could read the newspapers like everyone else and could make up their own minds, and they had done so.

Lindsey Graham has not covered himself in glory during the Trump impeachment saga, and he does not do justice to his constitutional responsibilities by publicly posturing as not just close-minded but positively uninformed. Senators have an obligation to scrupulously adhere to the forms and expectations of their constitutional office, and sometimes that means saying that you will actually read the transcripts. Senators on both sides of the political aisle subvert public confidence in our constitutional institutions by maximizing their partisanship in the midst of an impeachment inquiry. You can think an impeachment is misguided and insufficiently supported by the facts and the law, and you can think the opposite, without suggesting that you do not care about the facts and the law.

Senators should do better, not only to live up to their constitutional responsibilities but also to preserve faith in our constitutional system. But just because senators already know how they expect to vote in a Senate trial does not in itself mean that they will be violating their oath. And it certainly does not mean that they will not be allowed to vote on whether to convict the president of high crimes and misdemeanors. Whether they have made the right call on whether the president should be convicted and removed will be a matter for their constituents to consider when next they stand for election.

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  1. This may not be the worst post ever but it’s right up there with the most pointless post ever.

    1. It’s certainly interesting to hear that (in some sense) Senators have these duties, but they appear to me so toothless as to be meaningless. I remember how during Clinton’s trial, some of them came right out and said they were going to vote politically, and the Chief Justice did not cite anyone for contempt or even threaten to. I don’t expect any of that to change this time around.

  2. Why should Lindsay Graham stay “informed” on an utterly farcical process in the House? I swear, that concept just baffles me. We know that the impeachment is contrived. Why should he bother reading transcripts?

    This is pure Kabuki theater. Search your feelings, you know it to be true.

    1. He’d sorta hafta stay “informed” in order to know it’s an utterly farcical process in the house, wouldne? To know it’s contrived?

      1. You can stay informed without reading bullshit transcripts of a bullshit process.

        1. Well, you obviously didn’t and aren’t.

          1. As opposed to you? Are you denying that the House impeachment is a bogus partisan crock of shit?

        2. How? By relying on the opinion of someone who did read them such as a staffer or someone in the media?

          1. Or you could just listen to the statements the Democrats were making all along and note how their story kept wildly changing?

    2. Sure it is….that’s why they argued the process and tried to out the whistleblower and stopped anyone from the WH testifying.

      I know innocent people LOVE to just argue semantics instead of the actual case.

      1. LOL. I haven’t read the transcripts either, and I know this House impeachment is utter bullshit. You can pretend it isn’t, that’s your right, of course.

        1. How do you know that?

          1. He knows it the same way many Democrats knew that Trump needed to be impeached even before his inauguration, or how many more knew the same thing on his first day of office for owning an interest in a business that sold goods to a member of a foreign nation and thus violated the foreign emoluments clause even though the first dozen Presidents had done the same without raising an eye.

            It’s because the people doing it belong to the wrong tribe. Since your tribe is always right, and their tribe is always wrong, anything they’re saying about your guy must also be wrong.

            1. ‘I’ll bet the other side is bad, so it’s okay for my side to also do the bad thing.’

    3. Facts don’t care about your feelings ;-P

      1. I’m not sure there are any material facts in dispute. It is kind of interesting the way the House ended up crafting the Impeachment and not alleging any crime. They are saying Trump asking for an investigation of Biden was an abuse of power, but have given up on “bribery” or quid pro quo. I don’t think anyone disputes Trump asked for an investigation, so the Senate should just concede the fact and decide it’s not an abuse of power.

        Same with the Obstruction of Congress charge, it’s fact Trump has refused to comply unless a court orders him to, there is no dispute on the facts there either. It’s just a question of whether that rises to an impeachable offense.

        So with no facts in dispute, have a vote and get it over with. No need for any witnesses and drawn out hearings.

        1. Eh, there are some facts in dispute, but they’re not so much about what Trump has done, as they are about what was done in pursuing his impeachment.

          I think the administration wants to expose the degree to which the “whistleblower” report was a put-up job, coordinated with Schiff’s staff, and with some of the rules for whistleblowing actually being changed to clear the way to file the report.

          Trump wants to turn things around and put the Democrats on trial. Given that this is a purely political proceeding, apparently motivated by a desire to hinder Trump’s reelection, this doesn’t appear to me to be unreasonable.

          1. I would like to see that as well, but it doesn’t have to be part of the Impeachment hearing. I think it’s obvious the reason the WB got so shy was his false statements, under penalty, that he hadn’t discussed anything with Congress. Being asked that, and then claiming the 5th would have been a disaster. But it certainly makes it fair game for the IG to look into it or a criminal prosecution. I think prosecution of the WB is bad optics, but they could offer him immunity to find out who on Schiff’s staff told him to lie on the form, that’s probably a chargeable felony too.

            1. No, it has to be part of the impeachment hearing, if you don’t want it to just vanish uncovered. You want, if you’re a Trump supporter anyway, the impeachment to be considered in the context of how it originated.

              And there will never be a better opportunity to accomplish that than the Senate trial.

            2. Well the last president certainly set a new precedent about prosecuting whistleblowers, so if there’s any consistency in DC (and there isn’t) then that would be perfectly accepted by everyone.

        2. Trump calling it a perfect call does have you guys in a bind, but you’ve found some ways to come up with alternative facts.

          The Ukrainian investigation or lack therof of the Bidens is not material, but the right continues to spin out some pretty disputed fact patterns. Also lots of nonmaterial Obama-era conspiracies thrown into the mix.

          And then there is the dispute about Trump’s general concern regarding corruption in areas other than targeting the Bidens.

          Y’all continue to call the testimony of State Department officials fabrications by angry bureaucrats.

          Some of you continue to dispute the timeline of when the Ukraine knew about the funds being held up and whether they knew the reason.

          Some also claim that Trump was calling for an investigation, despite testimony he was actually seeking the announcement of one.

          1. This is the interesting view. I’m going to skip over some of the claims (ex: state department testimony) just because I don’t know anything about them, but the rest is what’s so interesting.

            The last claim is that people testified that Trump only sought an announcement of an investigation, rather than an investigation that the Ukrainian President was politically locked into performing by his announcement. If Trump only sought the announcement (and not for some attempt at scaring his detractors out of the bushes) then it’s pretty clearly (to me) improper – the US has no interest in a facade of anti-corruption without the substance. But that’s jus begging the question – the entire point is that it assumes that no further investigation was expected, and that somehow Ukraine knew that too – otherwise they’d continue in with their announced investigation.

            Is that possible? Totally. Is that level of incompetence more believable from a Trump Administration, as opposed to any of the prior four? Yep. But does that also require both a very specific form of incompetence and ill-intent? Absolutely. Is it more likely that Trump sought an investigation of corruption (legitimate governmental purpose) knowing it would be prefaced by an announcement for which he’d have some level of personal gain (and which would be illegitimate on its own? Also absolutely, as this requires fewer unlikely assumptions to be true. Is doing an action for the benefit of the US that also benefits you impeachable? If so we should have impeached every president I can think of, and while that would be an interesting new norm, it’s also a prime example of “but Trump is different!”

            Related, but ignorant, why is a Ukrainian investigation of the Bidens (or not) immaterial? This may be obvious, but I’m not seeing it at all, which suggests you know something I don’t.

            1. So now you need to assume Trump’s motives in order to make what he did proper. By the bare facts, not looking good for Trump.

              The idea that Trump was focused entirely on the thing that would personally help him isn’t a very complicated or unlikely assumption; I don’t know where you get that it is.

              And then you fall back into ‘this is normal President doing normal things’ after your deep foray into Trump’s true intentions being other than what they seem.

              Even if Biden were super-duper guilty, it wouldn’t mean that Trump gets to work over a foreign government to get them to announce such.

          2. “Trump calling it a perfect call does have you guys in a bind, but you’ve found some ways to come up with alternative facts.”

            Why is that? You can disregard the accused’s characterization and still find him guilty.

            Suppose X is accused of murdering Y. At trial he says, I could never murder Y, I loved him like a brother. Then ten witnesses say that in fact X hated Y and cursed him out every day. The jury could still acquit X, even if they disbelieved that part of his testimony. They might think there is insufficient evidence of murder, or believe an alibi witness or something else.

            It’s like a demurrer at common law. A defendant can say, I dispute everything in the indictment, but even if it is true, it is not a crime, so dismiss the case.

            Same thing could be done here. The Senate could vote on a simple resolution — has the House charged “Other High Crimes and Misdemeanors,” even assuming everything they say is true (albeit disputed). If the answer is NO, why bother with a trial?

            1. Take an absurd example. The House impeaches the President for the “High Crime” of picking his nose in public. They take extensive testimony and review videos of that very act, and then charge that as an article of impeachment.

              Does the Senate have to hold a trial on that? Or can it just say, we are not going to bother reviewing the evidence, because even if it is all factually true, the House has not charge something sufficient for removal. (But, hey Pres, we are sending you a box of tissues as a gift.)

              1. I would imagine the Senate would just hold an immediate vote and be done with it.

  3. It is readily imaginable that an officer might commit obviously impeachable offenses in broad daylight and in plain sight of all the members of Congress.

    Happens all the time
    Most of the time Congress approves of it, especially when it gets them what they want without having to put they name on an aye vote that might someday come back to bite them in the ass.

    1. When they’re all corrupt, who cares who is committing comes in front of other criminals?

  4. We have a bit of a conflict here between the original concept of a jury, and the modern concept.

    The original jury of your peers was expected to be familiar with the defendant, the plaintiff, the general circumstances, and take that all into account.

    The modern jury is supposed to be composed of the proverbial mushrooms: Kept in the dark and fed bullshit. That’s because the purpose of the modern jury is to get as close to a system where only legal professionals matter as possible, without admitting you’re getting rid of the jury system mandated by that darned Constitution.

    Lindsey, (who I don’t particularly like, and plan on voting against in the upcoming primary.) is right in line with the original concept of a juror: He’s an informed juror, he knows what is going on, and he’s going to nulify this attempt to railroad the President. The difference here is that he can actually say so, while in criminal trials jurors have to hide their intention to nullify to avoid being kicked off the jury.

    All the while he’ll be trying to maximize the damage to Trump without being to obvious about it, of course, since he actually despises Trump, and is only doing this because SC voters like Trump. Expect him to vote with the Democrats on some of the rules votes.

    1. While I completely agree with you, it shouldn’t even be getting to the deliberation phase anyway.

      The senate should first ask do you have a formal crime against a real law we are supposed to try. Second did the House observe due process in the review of the subject. If either of these is false, the Senate, not being as lawless as the house moves to dismiss. Stop wasting our time

      1. That’s part of maximizing damage, though. Trump actually WANTS a trial, during which he’ll be able to affirmatively defend himself, bring witnesses, and expose aspects of this impeachment push that are more than a little shady. (Like the “whistleblower” actually being a put-up job, his ‘report’ having been drafted by Schiff’s staff.)

        The Democrats would actually prefer, given that Trump’s acquittal is basically certain, that the trial be over as fast as possible, ideally without any presentation of the case, in order that they can portray it as a politically motivated whitewash.

        1. I get that Trump wants this, and it is definitely the chosen Trump strategy, but I am wondering about the effectiveness of this line of attack. At this point having seen the House proceedings, is there anyone that will be newly convinced of anything ? The “Orange Man Bad” NPCs will believe what they need to believe when they need to believe it. Facts be damned. Logic is not their stock in trade. On the other side, do we really need more evidence of Schiff’s dishonesty or Biden’s pay for access scheme ? Will this sway anyone ? I suppose that keeping clear evidence of Dem malfeasance front and center might sway someone, but I would guess the undecided group is small at this point.

          Perhaps the trade off is that the Senate cannot do too much legislative damage while they are preoccupied with this.

        2. I’m not sure about that. Schumer said they would be asking for subpoenas for Bolton and Mulvaney, but that just may be a bargaining chip to avoid calling Hunter and or Joe. I can’t imagine the Democrats want to hear Meadows or Collins ask Hunter how being a known crack addict administratively discharged from the Navy in 2013 prepared him for starting his career at Burisma in 2014.

          1. Like the Republicans in the House, Schumer can ask for anything he wants.

            1. The denial of which would be equally proper, though I don’t expect much consistency from those who weren’t outraged that the House Republicans were prevented from exploring lines of investigation. And the Schiffs claim that (ex: Biden Jr) wasn’t germane is just as easily countered at the Senate – the House conducted their investigation and explicitly chose to exclude these, so they deemed them immaterial.

              Of course, I’ll find both denials outrageous, even while I’ll understand why the Republicans engaged in tit for tat.

            2. Yeah, but you have to remember anything Schumer or Schiff ask for doesn’t go to McConnell or Graham for approval, it goes to the whole Senate for an up or down vote. You know damn well Romney, and Murkowski at least would love to stick it to Trump and claim they are just being fair minded. Collins probably has to walk a finer line because she’s up for reelection and she can’t win without Trump’s base. Trump won’t be found guilty, but he could lose some damaging procedural votes along the way.

        3. Brett, neither you nor I know the facts of the whistle blower’s contacts with anyone. Your take strikes me as one of the wilder conspiracy theories around, but if I were mistaken on that, so be it.

          Brett, it is because of stuff like you assert that I want to see a full-on trial, not time-limited, with full access to witnesses for both sides. Bring on Joe and Hunter Biden. Bring on the whistle blower. Cross examine Schiff. Make it a spectacle. Rivet the nation to their televisions.

          But also, bring on all the documents so far subpoenaed. Bring on Bolton, Barr, Pence, Pompeo, Mulvaney, Giuliani, Lev Parnas, Devin Nunes, the translator for Trump’s talks with Putin, and Trump’s tax returns. And of course, bring on Trump himself.

          And by all means, provide due process, for the defense and for the prosecution, with both sides represented by counsel, with a full right to cross examine. Trump gets represented by whomever he wants. The prosecution gets represented by Barry Berke.

          You good with that? Due process for both sides? Total spectacle to wipe the slate clean? Or is it more your idea that Trump gets to call witnesses, and call the shots? And the prosecution gets to go pound sand?

          That latter is what I think Republicans want and expect—except the Senators have enough sense of political self-preservation to worry whether they can demand witnesses, but deny them to the prosecution. They probably hope for that, but it looks like Mitch is going to tell them they have to settle for no due process.

          But how about you? Are you really in for the whole spectacle? I am.

          1. It’s not a conspiracy theory that the WB met with Schiff’s staff before he filed the complaint with the IG, and that he didn’t disclose his contacts as required. It’s also been acknowledged but not explained that the whistleblower complaint form and procedures were changed between the July phone call and when the complaint was filed, and then changes backdated:

            “Michael Atkinson, the intelligence community inspector general, told HPSCI lawmakers during a committee oversight hearing on Friday that the whistleblower forms and rules changes were made in September, even though the new forms and guidance, which were not uploaded to the ICIG’s website until September 24, state that they were changed in August. Despite having a full week to come up with explanations for his office’s decisions to secretly change its forms to eliminate the requirement for first-hand evidence and to backdate those changes to August, Atkinson refused to provide any explanation to lawmakers baffled by his behavior.”

            1. the WB met with Schiff’s staff before he filed the complaint with the IG, and that he didn’t disclose his contacts as required

              Schiff did play with who ‘we’ are when committee aides had spoken to the WB though not him or his office.
              But there is no disclosure requirement about such contacts; dunno where you’re getting your facts from

              And if you can’t think of a simple and innocent explanation why forms might be uploaded somewhat after they were made official, you’ve never worked with the government.
              Do you have any idea how long it takes to change official forms?!

              1. “But there is no disclosure requirement about such contacts; dunno where you’re getting your facts from”

                I got the facts from Sean Davis at the theFederalist story on October 4. He got his facts from the official WB form, and the ICIG testimony to the HPSCI. And it was later toward the end of October that the WB and his lawyers said he wouldn’t testify.

                From Davis’ story the form declaration about false stay and ommisions and then below the requirement to disclose all other contacts:
                “I certify that all of the statements made in this complaint (including any continuation pages) are true, complete, and correct to the best of my knowledge and belief,” whistleblowers are required to attest. “I understand that, pursuant to 18 U.S.C. 1001, a false statement or concealment of a material fact is a criminal offense punishable by a fine of up to $10,000, imprisonment for up to five years, or both.”

                UPDATE: An official confirms the whistleblower failed to disclose prior contacts with House Democrats regarding the allegations of his August 12 complaint. The box in Part 3, Question 1 of the form regarding contacts with Congress or congressional committees was unchecked and left blank. The dates of those contacts were also not disclosed as required. And the specific members and committees that were contacted were likewise not disclosed in the section requiring that information.

                1. But nothing he said was false, as I discussed above (Schiff is not the staff of the committee he chairs).

                  Now, I’d have been more careful, and some political hay can be made, but it is very much overplaying your hand to argue criminal nondisclosure.

                  Also, the Federalist are kinda crazy these days…

                  1. Did you read what the form said?
                    “Question 1 of the form regarding contacts with Congress or congressional committees was unchecked and left blank.”
                    That’s Schiff or staff.

                    1. And:
                      “are true, complete, and correct to the best of my knowledge and belief,”

                      That means leaving it blank is still a felony.

                2. Kazinski, so what?

                  I am ready to let Republicans call the whistle blower. I call for full due process for both sides: witnesses, documents, lawyers, cross examination.

                  Do you back that or not? If not, please go pound sand on particular demands to favor just your side.

                  1. Why should a Republican Senate provide what the demoncrap House refused to – i.e due process?
                    Just to make things even, the Senate should do as the House did and have a purely partisan process.

                    1. I don’t know why I’m bothering to respond to someone who thinks juvenile name calling is witty, but the House did not deny anyone due process.

          2. “Brett, neither you nor I know the facts of the whistle blower’s contacts with anyone.”

            We know this much: The “whistleblower” had communications with the intelligence committee before filing his report, and failed to reveal those communications when filing the report. There was a nice, convenient box to check, and he left it unchecked.

            We know that the whistleblower form was revised to permit hearsay accusations mere days prior to the declassification of the complaint, which kicked off the Ukraine investigation in the House, but that the change was backdated to before the complaint was originally filed.

            But, by all means, let both sides call their witnesses, with the Republicans allowing the Democrats as long a leash as the Democrats allowed Republicans in the House.

            1. Come off it. We know what the communication was even – it was guidance to talk to the IG’s office.
              If you want to start making up how the committee lied and the communication was much more detailed, why not just stat making up ex parte communications all over the place?

              Again, a form being updated in the government doesn’t happen quickly. And OMB gets a say after the Paperwork Reduction Act, so this conspiracy is pretty wacky.

              I do like how you’re sufficiently convinced of your own scenarios that you don’t mind open inquiry. Trump’ll need to lift some of his blanket immunity claim, though.

              1. Sarcastr0, his last paragraph says he is not prepared for open inquiry. He thinks the House did not permit open inquiry, so the Senate should not either. Brett seems to want a trial with no due process. I was calling him out on that, and got back weasel words.

                So let’s try again. Brett, I laid out a Senate due process scenario to give Republicans everything any of them could want. I asked you if you would back it, conditional on Democrats getting the same. Do you back it? Or not?

              2. “Come off it. We know what the communication was even – it was guidance to talk to the IG’s office.”

                No, we know that’s what Schiff, who earlier denied the very existence of the communication, now claims it consisted of. IOW, we know Schiff’s fallback position, now that the communication has been exposed.

                Do I know the content of the communication? No. But why are you relying on the people who earlier denied it happened, for an honest account of what was communicated?

                1. Brett, stop whining about one point, point meant to deliver advantage just to your side.

                  I challenged you to endorse full equal process in a Senate trial, for both sides. Lawyers, subpoenas, witnesses, sworn testimony under penalty of perjury, cross examination. Do you back that or not?

                  If not, please confess that you want a sham process to protect Trump, and to hell with the nation.

                  1. And the nation was protected by the House sham process to remove the duly elected president?
                    You need to bone up on your party’s ideas on things like affirmative action to see that even imagined wrongs must be countered by actual ones.

            2. You are good at repeating old talking points, not so good with facts.

              You are mistaken about the history of the forms, but no form was revised to permit hearsay accusations for one overriding reason: forms do not have legal weight. The statute determines what’s permitted, not the form.

      2. There is the rub, which Whittington mentions up front, but doesn’t elaborate on – “ will do impartial justice according to the Constitution and laws.”

        No law broken, so this is just a continued farce from the Dem controlled House; now it will be the reverse, with the Repubs leading the useless political theatre.

    2. It’s an interesting point, but more relevant is that we have a real conflict between the idea of a jury and the idea of a Senate.

      And we should also bear in mind that this is a rare situation where there actually is law to refer to. The Democrats objected to Republican references to the Senate as a “jury” in 1999, and the Republican Chief Justice, William Rehnquist, agreed with the Democrats and ruled the Senate is not a jury.

  5. This whole post essentially argues that they can do whatever they want and it’s perfectly ok to go in as a juror and say beforehand that they are siding with the defense regardless.

    To argue as you do is an aberration of justice and past examples of it don’t make future injustices less wrong- they just make you sound like a complete hack who is arguing that our rules are meant to be broken.

    1. “This whole post essentially argues that they can do whatever they want and it’s perfectly ok to go in as a juror and say beforehand that they are siding with the defense regardless.”

      Of course, multiple Democratic senators are siding with the prosecution regardless. Indeed, several Democratic Senators have been arguing for Trumps impeachment since before the Ukranian matter happened. So there are interested and biased parties on both sides.

      The American people will have a chance to hear the evidence. However, It’s unlikely we get any where near the 2/3rds vote for conviction.

      1. Problem is, the 2/3rds vote has always been a bit of a red herring. It takes only 3 Republican defectors to hand control of the Senate trial to the Democrats. If that happens, I suggest the chance Trump gets removed goes notably higher, because the Democrats could get to cross examine on television. Few if any of the Republican Senators would think protecting Trump was worth the campaign ads those cross examinations would deliver to be used against the Senators.

        1. You mean 3 former Republicans. There is no going back.

          1. If that implied threat were really the issue, it would not be very useful because three Republican senators are retiring this year, so they do not need to “go back.”

        2. They would have to leave Republicans with enough control to at least have deniability, or else plan on retiring at the next election.

  6. And he I was, thinking after reading this post’s headline, it would be Whittington complaining that McConnell is coordinating with the White House Counsel on the Impeachment, and instead I find a fair and impartial(ish) post that is informative.

    He’s maybe walked back from the ledge, and realized that it’s going to be okay.

  7. So, going into the Senate impeachment trial, we only know of one Senator who has already made up his mind apparently. Senator Lindsey Graham will support the President, all the others have kept an open mind. What planet are you on? Every Democrat in the Senate has been screeching for Trump’s impeachment since November 2016. I particularly like, though, that references to Ukraine have been omitted from the charges in case the Republicans should get to call Joe Biden as a witness.

  8. So when we encourage jury nullification, e.g., with regard to being predisposed to not convict anyone of a non-violent drug possession charge, that’s not OK anymore?

    1. I 100% agree, mpercy. It does not make sense to say that the senators cannot use the power for jury nullification.

      Now, that would mean that the senator has to say “I believe that the president has committed a crime and is guilty of a constitutionally impeachable offence but i do not believe that this ‘impeachable offence’ does not belong on the list, and I would vote to acquit even if this elected official played for the other team.” Do you think any of them can actually say this with a straight face? I do not, at least not without a lot more botox.

  9. There is some irony in a case that rests on the phrase “for political advantage” being judged by people should recuse themselves because of the same political advantage.

    Our country’s government has become a Japanese game show.

  10. In a real jury trial, the proper answer for a prospective juror who is asked the question, “If you had to vote now, what would your vote be” is “not guilty”, or “not proven.” There is no other appropriate answer prior to the start of the trial and the admission of evidence. “I don’t know” isn’t even an appropriate answer. We beat this into the heads of the venire at every jury selection. In a system where the plaintiff has the burden of proof, the verdict is always “not guilty” or “not proven” until competent evidence is introduced and proves the allegations.

    1. “Not proven”? Do you eat haggis, too?

      1. No, I’m in favor of both “not guilty” and “not proven,” with the latter replacing our current not guilty, and a not guilty verdict resulting in damages against the State. If the defense is so strong that they’ve proven the innocence of the defendant beyond a reasonable doubt then the charges should never have been brought.

        1. That sounds fair, in all seriousness.

  11. I’d be interested in seeing Schumer’s vote on impeachment, after all he did his fellow New Yorker a solid before Trump was even inaugurated and warned him about being set up by the intelligence committee:. “Let me tell you: You take on the intelligence community — they have six ways from Sunday at getting back at you.” Wow, that was prescient.

    That suggests to me Schumer would have an open mind about Trumps guilt or innocence. But I expect Schumer will recuse himself because Trump and his family have been major contributors to Schumer’s campaigns over the years, along with
    Sen. Kirsten Gillibrand of New York, Sen. Cory Booker of New Jersey, Sen. Dick Durbin of Illinois, Sen. Ed Markey of Massachusetts, Rep. Charlie Crist of Florida, and probably a few other recipients we haven’t heard about. But who knows, maybe they’ll just return the contributions and vote anyway.

  12. “most sycophantic senator in the Republican caucus”

    Ad hominun. And you a law professor!

    Around 90% of GOP voters oppose impeachment. Depending on the poll, independents narrowly oppose or narrowly support. Basically 50/50.

    GOP senators who vote to convict are risking primary challenges and Trump rallies for their opponents.

    Graham is just going along with political realities.

    Once again, its a POLITICAL PROCESS!

    1. Graham is facing a tight race in November, and turnout will be key. Any backtracking on Lindsey 2.0 could be devastating, I’m sure Trump will pull out all the stops pulling him over the line if Lindsey is helpful, but I don’t think Trump will punish Lindsey for just making it go away rather than shoving it down their throats. I don’t think there are vote in the Senate to give Trump all he wants without giving the Dems their witnesses too.

      They’ll be enough opportunities for throat shoving down the road. Losing one Democratic congressman to the GOP is a good start already.

      1. Trump should consider that, as soon as that primary is past, Graham will be thinking, “I’m going to be here for the next six years, and I only have to be liked by the Republican base starting five years from now.”

        As soon as that primary is past, Lindsey 2.0 reverts to the prior release.

        1. I don’t know you see a lot more in SC than I do, but I think, and hope, a lot of the parts of Lindsey I disliked died with McCain.

          1. I hope, but don’t think. It’s not like McCain had some supernatural hold over Lindsey. They were buds because they were birds of a feather.

            1. Right, but there wasn’t any doubt about which one was the real Maverick and which one was the sidekick. Some things he’s stayed pretty close to McCain to be sure. Lindsey still is and will be an immigration dove, but that’s a far cry from an open borders fanatic. And he’ll always be a hardline intervention hawk too, just like McCain. But so much of McCain was his vanity and jealousy and need to be the top dog, which is maybe a little too similar with Trump for those two to get along, but Lindsey is fine as a sidekick.

        2. It seemed like Lindsey had his fill of the old patterns with the Kavanaugh stuff. And with good reason. Why spend one second talking about our precious norms with people who act in bad faith as their true, actual norm?

          1. I’ll believe it if it lasts past the primary. His usual pattern is to only be conservative when he needs to.

    2. Not ad hominem if it’s not being used to discount what Graham is saying. You know this, Bob.

      I don’t even know why you bother to post if all your posts are ‘IGNORE THE NORMS YOU ARE DISCUSSING!’

      1. “if it’s not being used to discount what Graham is saying”

        He is using it to discount what he is saying.

        Thee are no “norms” here, its all situational. That is the point.

        Graham and Nadler [among others] both said the opposite 20 years ago to what they saying now. The parties have just reversed their positions.

        1. Lindsey Graham has apparently committed himself to being the most sycophantic senator in the Republican caucus. Thus, as the House prepares to impeach the president, Graham felt the need to publicly declare, “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” and “I’ve clearly made up my mind, I’m not trying to hide the fact that I have disdain for the accusations and the process.”

          That’s not discounting what Graham is saying.

          I’m fine with distinguishing Trump from Clinton. You need to work hard to conflate them so you can throw up your hands and appeal to cynicism to once again argue that nothing matters but power.

          1. Not accepting double standards is called “cynicism”.

    3. “Ad hominun. And you a law professor!”

      Illiterate. Do you still claim to be a lawyer?

  13. Why should the sight of Senators violating their oaths/affirmations be so surprising?

    They regularly violate their oaths/affirmations to support the Constitution.

    The 2/3 rule will hopefully cancel out the effects of bias in different directions. At least, such was the Founders’ naive hope.

    1. Just to be clear – the ideal Senator would weigh matters as an impartial judge would, but the Founders knew that plenty of Senators wouldn’t meet this ideal. Hence the 2/3 rule, which so far seems to have ensured that the impeachment process has driven mainly guilty people from office (through conviction, or through resignation under threat of impeachment).

      Now, there’s the problem of wrongful *acquittals,* prompted by partisanship, and I’ll just drop three names – Chase, Belknap and Swayne.

  14. I think it came as a huge shock to the academic legal community when the Senate vote in the Clinton impeachment trial was almost entirely on party lines. I think there was this idea that hyperpartisanship reaching the point where it would entirely determine questions of guilt or innocence and render oaths of impartiality irrelevant formalities was somehow outside the modern American norm. Not so.

    We have reached a point where loyalty to party is everything, where there is almost no external norm or source of loyalty, duty, or allegiance which supersedes it.

    1. I was actually in law school at the time. I remember exactly no one being shocked. Maybe I missed it.

  15. I am curious to hear, from anyone who thinks this oath has meaning, what constitutes a violation of it.

    1. I think the oath has meaning, and (publicly) that any Senator who reneges must resign in disgrace.

      But the reason it matters isn’t what it binds, or what’s a violation – that’s unprovable. Instead it’s an anchor point of Senator behavior, in the same way that stating a price you’re looking for at a car dealer sets the anchor around which negotiations circle.

      Turn it around, if the oath were instead “I swear to advance myself, only myself, and screw my fellow man” we’d had a significantly worse position.

    2. Failing to act like impartial judges.

      I think that, at one and the same time, the Founders (a) wanted this to be the norm, while (b) expecting that many Senators would fail to meet the norm, hence (c) the 2/3 rule to blunt the effects of partisanship.

      1. Any relationship to what the Founders wanted, and the Senate, died in 1913, when the 17th amendment was ratified.
        It’s become a more political body, since then.

        1. Yeah, the Senate was super apolitical before 1913.

          Been a while since I’ve seen the 17th silver bullet folks.

  16. Politicians upholding their oaths? These discussions are getting further and further away from reality.

    Anyone want to point out all the other interest in politicians’ oath-keeping over the past year or four? Or is this yet another opportunistic double standard?

    1. I predict this kind of lame blind cynicism is going to increasingly become the talking point for the GOP on a host of issues.

      1. Expect it on every issue where double standards are being applied. Which, for Dems and leftists, is almost every issue.

        But it’s most pronounced for the pearl-clutching Oh no! They’re violating our precious norms! What will my European friends say!!? stuff you guys are hyperventilating about since 2016 (while you make up the new gender pronoun of the week).

      2. Sarcastr0, maybe we could expect better from sworn officials who hold elected office?

        But otherwise, cynicism is the poisonous norm among pretty much all ordinary Americans who choose not to follow politics. Political discussions among those folks are destined to be short. Think of the most dis-involved, pessimistic, abject position, and whoever takes it first wins. It’s kind of a quick auction to see who gets to shut the discussion down, by proving he is the most helpless, ignorant, person in the group, and thus the most cynically sophisticated.

        It’s a pattern so predictable that political operatives have learned to manipulate it. They use it to shut down conversations on topics they don’t want discussed. Republicans are busy with that now, as they announce, over and over, that the result of a Senate trial is a foregone conclusion. Shamefully, major media are buying in, and repeating it, even without prompting. Media figures want to be seen as cynically sophisticated just as much as everyone else, apparently.

        1. Was a time each would police their own side. Now, on both the left and the right but very much more on the right, it’s a race to find something to equate so you can cry about how corruption has become the norm and so the latest sin doesn’t really matter.

          This cynicism has always been there in those who don’t much follow politics, but it’s not an auction – the right is now weaponizing it to exonerate their own side of everything. Such a direct appeal is new to me (a far cry from Morning in America, or even Hope and Change), and it’s all they have left, now that they’ve thrown in with who they’ve thrown in with.

          The media has never been good at policing narratives, and they’re not getting better at it.

          1. “Was a time each would police their own side. Now, on both the left and the right but very much more on the right,”

            Oh come now. I didn’t much of an effort in self policing when William Jefferson was busted having bags of cash in his freezer in 2006 and stayed in Congress until 2009 when the voters turned him out not the Dem caucus, or James Traficant, or Northum, Larry and Curley in Virginia. Jim Wright and his book selling scandal.

            And sure there are plenty Republican scandals too but a Republican accused of serious scandal or wrong doing lasts in office 1/10 as long as a Democrat. Look how long Gingrich or Livingston stayed in office after having affairs after the Clinton impeachment, or completely innocent Tom Delay forced to resign because he was under indictment.

  17. Irrelevant.
    No Treason
    The Constitution of No Authority
    by Lysander Spooner

    I.
    The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. It purports, at most, to be only a contract between persons living eighty years ago. [This essay was written in 1869.] And it can be supposed to have been a contract then only between persons who had already come to years of discretion, so as to be competent to make reasonable and obligatory contracts. Furthermore, we know, historically, that only a small portion even of the people then existing were consulted on the subject, or asked, or permitted to express either their consent or dissent in any formal manner. Those persons, if any, who did give their consent formally, are all dead now. Most of them have been dead forty, fifty, sixty, or seventy years. and the constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them. That is to say, the instrument does not purport to be an agreement between any body but “the people” THEN existing; nor does it, either expressly or impliedly, assert any right, power, or disposition, on their part, to bind anybody but themselves. Let us see. Its language is:
    We, the people of the United States (that is, the people THEN EXISTING in the United States), in order to form a more perfect union, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves AND OUR POSTERITY, do ordain and establish this Constitution for the United States of America.
    It is plain, in the first place, that this language, AS AN AGREEMENT, purports to be only what it at most really was, viz., a contract between the people then existing; and, of necessity, binding, as a contract, only upon those then existing. In the second place, the language neither expresses nor implies that they had any right or power, to bind their “posterity” to live under it. It does not say that their “posterity” will, shall, or must live under it. It only says, in effect, that their hopes and motives in adopting it were that it might prove useful to their posterity, as well as to themselves, by promoting their union, safety, tranquility, liberty, etc.

  18. Is it possible to listen to the evidence and make an impartial judgement after hearing it all if you’ve announced ahead of time you’ve made up your mind?

    In a political show trial like this, absolutely. All the evidence you’re seeing is pretty much what you’ve already seen, and the partisan procedures used to get it have been visible. If the proverbial smoking gun shows up – and after more than 2½ years of non-stop investigation and allegations and digging by a highly partisan press to aid Democrats we can be certain it doesn’t exist- but if it does show up, you can change your mind.

    Impartial judgement means judging on the evidence.

    I’d still like to know what’s in those 50 boxes of evidence that Kenneth Starr had that were never divulged during Clinton’s sham impeachment trial where the verdict was known before the votes were counted. Democrats don’t have 50 boxes of evidence.

  19. This article does make some good points, but it doesn’t hold up.

    There are often high profile trials where much of the evidence is known, and if a juror says they have already made up their mind, we don’t allow them to serve. As for the politics part of it, I refuse to lower myself to the level of people who can’t exercise good judgement because it’s inconvenient to them getting reelected.

    Whatever one thinks of impeachment, it’s literally the least we can ask of our public officials that they practice a little objectivity in constitutional matters.

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