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Thursday, December 19, 2019

Oaths, Impeachment, and Questions of Degree

Senator Lindsey Graham caused quite a stir last week when he said, regarding the impeachment of Donald Trump “I’m not trying to pretend to be a fair juror here.”  Soon after, Senator Mitch McConnell said “I'm not an impartial juror . . . I'm not impartial about this at all.”  While we might all suspect that Graham and McConnell were never going to vote against President Trump in the upcoming impeachment trial, these statements are nonetheless controversial because they seem entirely at odds with the oath that both Graham and McConnell will have to swear at the beginning of the impeachment trial.

The U.S. Constitution states: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.”  The oath itself is not written into the text of the Constitution, but the current Senate rules contain the following oath: ““I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [name], now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’  Similar language about impartial justice has been used in the oath for a very long time, at least dating back to the impeachment trial of Andrew Johnson.

While the text of the Constitution does not say anything about impartiality, it seems pretty clear why impartiality is included in the oath.  In Federalist 65, for example, Alexander Hamilton stated that the Senate was the optimal body to try impeachments because they were independent and thus more likely to be impartial:

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

In other words, Hamilton wanted the Senate to make these decisions precisely because it was more insulated from political pressures.

Others have noted that the statements by Graham and McConnell are, on their face, inconsistent with the oath.  I agree.  But I wanted to write this post in response to a counterargument that I’ve seen—namely, that because impeachment is necessarily a political process, we cannot expect the Senators to actually be impartial.  Perhaps the oath is outdated, some say, and in a post-Seventeenth Amendment world,* we must expect that Senators will make their decisions solely on the basis of partisan considerations.  In other words, some are arguing that, the oath notwithstanding, we cannot expect political actors to behave impartially.

I am no impeachment expert, but I think that this issue raises a deeper question that is worth talking about.  The question is whether we can acknowledge that impeachment will necessarily include political considerations, while, at the same time, insist that it be something other than an exercise in rank partisanship. That politics will play a role in impeachment is, of course, inevitable because the task was assigned to Congress.   But even if politics has some role to play--or at least will play some role--in impeachment, that doesn’t mean we should throw away the idea of the oath or the principle of impartiality.  I think we can acknowledge some role for politics without saying that politics is the only thing that will or should matter. 

I see an analogy here to judges and the role of personal values and judgment calls. I know a number of people who insist that judges must adopt a methodology such as textualism or originalism in order to constrain them from making decisions based on their own values or policy preferences.**  Their argument seems to be that, if we acknowledge that a judge’s values should sometimes guide their decisions, then there is no stopping point—judges can simply substitute their preferences for all policy decisions by the political branches.

This argument about judges ignores hundreds of years of history during which judges routinely decided cases on the basis of their intuitions about right and wrong.  The common law process—in which judges would make modest decisions, and then later attempt to identify broader principles—required judges to consider policy outcomes.  And although the system was hardly perfect, it rarely (if ever) resulted in the parade of horribles recounted by those who counsel judicial restraint above all else.

In fact, I have sometimes wondered whether judges tended to issue modest decisions precisely because everyone understood that it was the judges themselves who were making important decisions.  Maybe it is easier for modern judges to make sweeping countermajoritarian decisions when they can say that the text or the history of the Constitution demands such a decision.  If judges today had to say they were making a decision because they personally believe it to be the correct outcome, would they, perhaps, make more narrow decisions?

Similarly, we could acknowledge that Senators are likely to be swayed by political considerations, but also expect them to observe certain norms of impartiality.  For example, what if the Senators openly tried to grapple with the inevitable pull of partisan politics? What if they were to say something like “I know that, as a Republican (or Democrat), people might worry that I am going to vote against (or in favor of) removal based only on politics, but here is why I think it is the correct decision . . .”?  In other words, Senators could embrace the idea that politics inevitably shape important decisions, but also try to explain the substantive, non-political reasons for their decisions.

In any event, the path that Graham and McConnell have taken seems untenable to me. I don’t see how either of them can say these things and then swear an oath to do “impartial justice.”  Whatever the phrase “impartial justice” means, it does not mean loudly declaring that you refuse to be fair.

 

* I find the role of the Seventeenth Amendment in all of this to be fascinating.  If anyone knows of some good writing on the Seventeenth Amendment and impeachment, please let me know!

** There are, of course, other reasons to adopt such methodologies. But a number of smart people I know have said that they prefer such methodologies because they constrain judges.

Posted by Carissa Byrne Hessick on December 19, 2019 at 02:36 PM in Carissa Byrne Hessick, Constitutional thoughts, Current Affairs | Permalink

Comments

I love your references, too. Admittedly, it’s difficult to disagree with the applicability of some of Britt’s criteria:

1. Controlled Mass Media. Yep, across-the-board Blue Team cheerleaders - with gobshite global coverage. (Again, do you think the global left considers them to be epistemic authorities, at all?)

2. Fraudulent Elections. E.g., the DNC's cheating Bernie out of the Blue Team candidacy in 2016. (See also the 1960 presidential election).

3. Cronyism and Corruption. See, e.g., the recent IG report on the FBI. See also “The Espionage Act, codified at Title 18, United States Code, Section 793 (“Gathering, transmitting or losing defense information”), subsections (e) through (f). See also Title 18, United States Code, Section 1924 (“Unauthorized removal and retention of classified documents or material”).”

4 & 5. Identification of Enemies/Scapegoats as a Unifying Cause + Labor Power is Suppressed. Again, your Blue team uses race (and sex) to engage in systematic class warfare. Any other Western country would be ashamed of this. What’s your response? Label all opposition to it (including by the union members in your northern states) as simply being a function of racism. Those damned deplorables! Now go buy some s%#t at Walmart, you fly-over state yokels!

6. Obsession with National Security. "The Russians have co-opted our elections! The Russians are coming!"

7. Opposition to Human Rights. Uh Oh. What about the global left, including TWAIL folks, who see such norms as part of a neocolonial neo-imperialist project? What, moreover, if that’s 100% TRUE? This reminds me of Paul Gottfried’s wonderful analysis of The Authoritarian Personality, exposing its cryptonormative criteria. (See also “Rampant Sexism”. See further, the Overton window and Salami tactics).

8. Corporate Power is Protected. Your industrial elites are Blue Teamers. They did not support the current president for office. Moreover, his half-assed trade war is HURTING their profits…

There's a reason why I just call it the Blue Team. It isn't liberal, socialist, or social democratic...

Posted by: Ever and Anon | Dec 22, 2019 4:54:06 PM

Lex,

Again, have you noticed that most of the rest of the Jewish diaspora does NOT agree with you - at all? (Or, like most American Jews, do you have absolutely no idea what the rest of us think because your heads are so far up...)? Some AMERICAN survivors have said so. Those in other countries, including my Bubbies, wouldn't even dream of it.

The reason would be completely obvious to you if you had even the slightest understanding of the European Left, which Team Blue is emulating with ever greater rapidity.

Goldberg conflated fascism with totalitarianism. Otherwise, his thesis was completely sound. Further, stop pretending that you American blue Teamers are liberal and actually tolerate diversity of opinions, rather than try to silence others' views as mere "ignorance."

And now you've gone from 50 years to POTUS 43? Give me a break (let alone about the politically biased and inaccurate metrics you espouse). Just ask your scholar-partner about the Red team's trajectory towards the advocacy of state control of the means of production and exchange and the rejection of capitalism, as the actual fascists advocated, compared to that of the Blue team's.

Again, my bet stands: it will be your Blue team totalitarians calling for book bans and scholars' osctracisms long before any fantasy of yours about right-wing fascism.

You Americans really cannot look at yourselves in the mirror and see what the rest of us see - especially the Hebrews amongst you. And even when your white-working class really starts targeting you (for flooding their country with impoverished millions and moving it even further towards oligarchy, and actively trying to replace them demographically - all whilst supporting the Aretz), don't you dare conflate their burgeoning hatred of you with support of fascism - a particular form of government. And when (again, not if) they do, don't you DARE run away to our countries! We don't want you ruining our homes (and our communities) too. You made your mess, now stew in it, amalek.

Posted by: Ever and Anon | Dec 22, 2019 2:40:48 PM

Ever and anon:

Actual Holocaust survivors are calling the red team Nazis, as are Holocaust scholars, including the one I'm married to and her mentor. Lawrence Britt's "14 Characteristics of Fascism" are present in the U.S., have been at least since the Bush 43 administration, and are being driven by Team Red, not Team Blue. Any clear-eyed examination of current events shows that we are transitioning from the eighth to the ninth stage of genocide as posited by Genocide Watch and, again, Team Red is doing the driving. To suggest that the liberal to progressive side of the U.S. political spectrum is more likely to push us toward totalitarianism is as goddamned stupid as Jonah Goldberg arguing that liberals are fascists, and is hereby received with the same contempt and dismissal.

Posted by: Lex | Dec 22, 2019 9:42:21 AM

Lex,

As the descendant of four Holocaust survivors, a non-American, and a student of Nazi history, I don't just doubt you. I know that you're wrong.

Are the Republicans the ones demanding the pervasive use of a preferred terminology, styling the preferred lingo "politically correct," and calling non-committed and opponents of such Orwellian speech codes "ignorant"? Did Republicans come up with political oaths in the form of diversity statements for employment in universities? (Remember, MCarthyism ended in the 1950s). Are the Republicans the ones trying to legislate every aspect of civil society to bring about their preferred social relations?

Are any Republicans calling for state ownership of the means of production and exchange or the eradication of "international capital"? Are they the ones calling for the elimination of existing class hierarchies (which, being a student of national socialism, you know was one an aim, one in which they actually achieved a modicum of success)?

Did the Republicans use focus groups to help decide which crimes to charge an official with in any time during the last 50 years, in addition to making a mockery of their stated commitments to due process?

Is the Republican press the one - still - consistently lying about whether Hillary committed any crimes, or whether the FBI abused its powers to investigate a Presidential candidate?

Indeed, do you think most people on the Left in the rest of the West, let alone the world, believes that your "liberal" mainstream press is (a) an epistemic authority or (b) actually liberal or progressive?

As America's middle class continues to shrink, its poor get poorer, and the divide between rich and poor grows, do you think anyone on the Left in other countries are unaware that you've spent the last few decades flooding your country with millions of unskilled illiterate laborers? Do you think the world is ignorant of the fact that these are people you systematically exploit, in violation of most laws the Left has fought for over the last 200 years (minimum wage laws, health & safety laws, etc.) in basically every Blue city in every Blue state (and that no Republican is making you do these things to them). That you use the concepts of race and racism (and sex and sexism) to engage in class warfare? ("No one is illegal!" They have a fundamental right to come here! "We're so proud of our Dreamers!").

Do you think the rest of the world doubts for one moment that if most of these people were "White" America wouldn't treat them thus or that if they were Black you wouldn't even let them in?

Do you think the world believes you are anti-fascist, when you chastise Trump while continuing to suck at China's teet and have all cheap products imported from there? (Again, in violation of everything "progressives" ever fought for).

You had no idea Trump, or that anyone like Trump, would win. In fact, Trump actually moved the Red team to the Left economically, which is part of the reason why the GOP Establishment and the Democrats hate him so much. (No union supporter in their right mind could possibly vote for a Biden or Clinton ever again).

Note, however, that I do not call your Blue team Nazis. They aren't. After the economic failures of the 1970s, the adoption of "neoliberalism" in the early 1990s, and that global project's present challenges (if not failure), your team is returning to same trajectory the Left has always been on: totalitarianism. From the Jacobins to Rosa Luxenburg and the Munich Revolution, from the early 20th century appropriation of the term "liberal" to help advance (propagandize on behalf of) decidedly illiberal politics in the United States, and the concept "drift" (manipulation) of "progessive" as a label, your Blue team is taking your country back on the road to gulags and "disappearances".

https://www.youtube.com/watch?v=knDe_EZSxTw

Here's an actual prediction for you. It'll only be a few more years before American "progressive" academics and students start deeming scholarship produced by those on your American right "harmful," rendering their spaces "unsafe," and thus calling for the literature's (and scholars') outright bans. Maybe a year or two after that some public book burnings? Want to put money on this?



Posted by: Ever and Anon | Dec 21, 2019 6:33:01 PM

If impartiality is required of Senators sitting in judgment on impeachment, then shouldn't all of the Senators who are currently running for president be required to recuse themselves? Isn't it a blatant conflict of interest for them to pass judgment on their possible future electoral opponent?

Posted by: Douglas Levene | Dec 20, 2019 6:08:56 AM

As illustration to my comment, concerning pseudo objective arguments made by both sides, one may read, very efficient article in " lawfare " putting or posing one by one, both sides arguments in very clear dialectical presentation, and see clearly, that despite the bias or impartiality, the methodology is pseudo objective and seemingly honest and rational, made so by both sides. Here:

https://www.lawfareblog.com/battle-impeachment-reports-do-parties-disagree-about-facts

Posted by: El roam | Dec 19, 2019 7:59:01 PM

Important post. Many complicated issues, but:

Concerning impartiality, we typically focus on current cases, or the current case, instead of model. What does it mean model:

Suppose one sitting president. Took bribe. Bribe in the plain meaning of it.As prescribed deliberately in the constitution. No doubt that the mental and factual configuration, suggests clearly and conclusively bribe taken. Then:

In such theoretical case, every Democrat, every Republican, will have to admit, that the president must be impeached. Whatever the political affiliation, they shall admit that he must be impeached, but above all:

They wouldn't care, about their political affiliation or stance. That is to say:

That by taking the oath or affirmation, we, or, they do agree, that there is a limit to the political view. It does stop somewhere. There are red lines. Lines not to be crossed. And indeed, no one would admit, that his stance concerning the impeachment has to do with, or, solely with political affiliation in such case of clear bribe. And even here with Trump:

Republicans try hard to prove, that Trump, really did nothing wrong, in legal, ethical and objective terms, and the other side as well, that what he did, was wrong. So, beyond such honest statements about partiality, one must engage in psychoanalysis, and go deeper.And understand, that it does help to create honest compass, honest perception or education, in general and philosophical terms.

Concerning the 17th, you may go here ( Cornell ) and this is good starting point, in order to understand why the Senate ( Hamilton brought here, really, far from being sufficient). Here:

https://www.law.cornell.edu/constitution-conan/amendment-17

Thanks

Posted by: El roam | Dec 19, 2019 7:07:16 PM

The senate is no longer insulated from political pressures. It is a popular house now. When Hamilton wrote those words, the state legislatures elected the senators. Perhaps we should start with Mayhew, that all politicians--above all else--want to be reelected.

In short, it seems odd to insist that the popularly elected senate be impartial while I don't recall any such demands being made of the House (if I am wrong, please link me to your post demanding impartiality from House members), even though they are have the exact same mode of election.

It seems quite odd for you to quote Fed 65 right before you mention the 17th Amendment.

Posted by: thegreatdisappointment | Dec 19, 2019 6:17:27 PM

It would be pretty to think. But the facts are these:

The Republican Party has been on an unbroken 50-year slide toward dictatorship, and it shows no signs whatever of being ready to get off the ride. Donald Trump is merely the logical, predictable, and predicted result of that slide, a symptom and not the disease.

Indeed, Trump could be gone tomorrow and we would still have to reckon with the fact that one of our two major parties has forsworn constitutional democracy in pursuit of absolute, dictatorial power. The GOP is now the party of treason, not nearly enough Americans understand that, and not nearly enough of those who understand it are saying so, including our so-called liberal media.

If you doubt me, just watch Rep. Devin Nunes’s 3-minute speech before last night's impeachment votes, in which Nunes ludicrously insists that it was the Democrats, not the Republicans, who colluded with Russia. While Nunes was last seen suing an imaginary cow, he cannot be underestimated because his speech is weapons-grade batshit and Reichstag-fire evil — and because there’s not a Republican in the House or Senate who doesn’t agree with him.

I don’t know how you fight an entire party, but as a student of Nazi Germany I do know that we had better figure that out right quick. If we don't, the remaining lifespan of America’s 232-year experiment with constitutional republican government could be measured not in years but in months. Yes, things really are that dire.

Posted by: Lex | Dec 19, 2019 4:59:50 PM

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