JOSE ESPINOSA—On December 18, 2019, the United States House of Representatives voted, largely upon party lines, to impeach President Donald J. Trump. The House passed two articles of impeachment, the first for Abuse of Power and the second for Obstruction of Congress. Now, as the United States Senate formally commences its impeachment trial, a select few senators vying to occupy the Office of the President of the United States are worried their roles in the impeachment trial would hurt their campaigns as the Iowa caucuses quickly approach. Politics and optics aside, the more pressing issue is that, if present, senators running against President Trump for the highest office in the land have the unbridled authority to cast a vote to convict President Trump at trial in the Senate.
While senators are not jurors in the traditional sense, they are bound by and swear the following oath prior to the commencement of Senate impeachment trials: “I solemnly swear that in all things appertaining to the trial of the impeachment of [an official], now pending, I will do impartial justice according to the Constitution and laws: So help me God.” Accordingly, on January 16, 2020, Chief Justice John Roberts administered the oath to senators, who pledged to deliver impartial justice. Nevertheless, prior to the administration of the oath, sitting United States Senators, current 2020 presidential candidates, and voters in the Senate Impeachment Trial, Elizabeth Warren (D-Mass.), Bernie Sanders (I-Vt.), and Amy Klobuchar (D-Minn.), have explicitly stated or strongly suggested their intent to vote to convict President Trump—without having had the opportunity to formally review the evidence in the Senate during the course of the impeachment trial, in violation of the oath they subsequently undertook. Former presidential hopeful, Kamila Harris (D-Cal.), similarly stated her intention to vote to convict President Trump without regard to evidence presented at the Senate Impeachment Trial. Impartial indeed.
While not all senator-candidates are so eager to convict President Trump without giving an opportunity to be heard during trial, others’ rhetoric speaks to a far more serious problem in the current procedure governing Senate impeachment trials: No mechanisms exist to guarantee that impeached officials are not subject to senators’ conflicts of interest—primarily those voting to remove a person from a position they are actively seeking to occupy themselves—unlike the explicit protections the Sixth Amendment affords to criminal defendants on trial. Now, as senators established—on strict party lines—the ground rules upon which the impeachment trial will proceed, after about twelve hours of debate, the lack of protections against partiality becomes more and more concerning.
Going forward, a reasonable solution would be to amend the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials (the “Senate Rules of Impeachment Procedure and Practice”) such that senators running against the officer awaiting his or her impeachment trial for the office he or she occupies are required to abstain, to recuse themselves, from voting in forthcoming Senate impeachment trials. Such an amendment would codify an enforcement mechanism that would assure the preservation of the oath sworn by all senators prior to Senate impeachment trials.
To be clear, the Senate can amend the Senate Rules of Impeachment Procedure and Practice, pursuant to Rule V.1 of the Standing Rules of the Senate, and it has amended the rules in anticipation of the impeachment trial of a sitting president. Nevertheless, partisan politics ensures that proposed amendments aim to further perpetuate partisanship and bias. Unfortunately, any amendments in favor of impartiality would likely not pass under current leadership as Senate Majority Leader Mitch McConnell himself states that he is “not an impartial juror.” This is despite recognition from sitting senators and a clear mandate from the legal community of the need for a fair, impartial Senate Impeachment Trial against President Trump.
Regardless of ideological convictions or party affiliations, it is clear that undemocratic implications arise when sitting senators, standing to benefit from impeaching a would-be opponent, may use their current office to advance their personal or political agenda, despite their sworn duty to deliver impartial justice. Partiality continues to run rampant, on both sides of the aisle, with the commencement of the Senate Impeachment Trial, and this should be concerning. Not because President Trump is or is not guilty of “high Crimes and Misdemeanors”—the merits of the charges will, should, and must be determined at trial in the Senate—but because President Trump, or any other official charged with articles of impeachment, should be benefited by—at the very least—protections against conflicted and biased adjudicators.
