The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.