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  Perhaps the oath is outdated, some say, and in a post-Seventeenth Amendment world,* we must expect that Senators will make their decisions solely on the basis of partisan considerations.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.