Before the last reel of the old Frank Capra movies, the triumph of evil or corruption would seem certain. Then Jimmy Stewart would give a speech (I’m obviously thinking, here, of “Mr. Smith Goes to Washington” but some other Capra films come close) causing cynics’ hearts to melt and do the right thing, you know, the right thing for America, by gosh.
Even though I’m a cynical old coot about politics, and never more so than in the Age of Trump, my inner child retains a soft spot for those old Capra films relying on a deep confidence in some combination of the American system and the American people.)
So that inner child felt a twinge of Capra-corny hope when I read a short piece in the Atlantic, by the editor and managing editor of “Lawfare,” noting an obscure constitutional provision that even an old Constitution nerd like me had never spent any time thinking about before.
According to Article I (which establishes the Congress), Section 3 (which covers the Senate) Clause 6 (which covers impeachment trials by the Senate), the Constitution requires that:
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation.”
The Constitution doesn’t say what oath senators have to take (or affirm) when being sworn in as jurors in an impeachment trial, but the Lawfare editors (Quinta Jureicic and Benjamin Wittes) note that this is the only thing in the Constitution that the senators are required to do under oath.
Pressing the point, they note that:
“Senators don’t swear a special oath to engage in the appropriations process or to consider judicial nominations or to propose health-care legislation. They don’t even swear a special oath to consider a declaration of war or an authorization to use military force. But they do when the Senate sits as the trial forum for impeachment, at which point it becomes a non-legislative tribunal with a wholly different institutional purpose and face.”
If I were writing an oath for that purpose, I would require the senator/jurors to swear that they will listen carefully and open-mindedly to the facts and arguments on both sides, and set aside all considerations other than whether the evidence has established that the accused has committed “high crimes or misdemeanors” of sufficient gravity that he or she should be convicted and removed from office.
If this post seems a little corny (and it strikes me that way), I should note that the Frank Capra classics were so corny that they were nicknamed “Capra-corn,” y’get it, like Capricorn, a constellation of stars in which the ancients apparently detected the shape of a mythical creature that was half goat, half fish.
Sure, the Senators will all swear an oath to “do impartial justice according to the Constitution and laws . . .” The Cult of Trump has, however, taken such a hold over the Republican Party that the best they will be able to muster up for “impartiality” is to wait until everyone is done talking before voting to acquit. Senator Graham has already said as much, and there seems to be little doubt that the rest of the Republican Caucus will follow suit.
The issue the Republican Senators face if they choose to lie after taking that oath is the very real penalty for doing so.
§1623. False declarations before grand jury or court. A fine, and up to 5 years in prison.
It would be fun watching those unprincipled, unethical Republicans hauled out in cuffs however.
I’m going out on a limb here, but I don’t think that even the feckless Graham or McConnell will look the Chief Justice in the eye and lie – but I’ve been wrong before.
In the immortal words of Richard Nixon, “Perjury is a tough rap to prove.” I don’t know how you would prove that McConnell and Graham were not impartial, their own words notwithstanding.
Bill Clinton perjured himself, was impeached and disbarred for it, but never fined nor sentenced. Unlike President Trump, he actually committed a crime, as did Andrew Johnson. But as we have all been reminded and seen, you don’t need to commit a crime to be impeached, assuming Articles ever leave the House.
Hmmm… If they take this oath seriously – a gesture toward impartiality that seems highly unlikely to me – Lindsey Graham and Mitch McConnell would have to recuse themselves. That, or the Orwellian memory-hole mentioned in a previous column would have to be applied to all of us. That, too, seems highly unlikely. There may be Democrats for whom a similar discipline would be appropriate, as well, though their dedication to skewering the President like a bug on a display-case pin seems pretty mild-mannered compared to the aggressive defense the Trump’s actions and statements, in the face of substantial evidence and testimony, put up by their Republican colleagues.
The Atlantic article refers to the “Senate’s Standing Rules on Impeachment.” Are there such “Standing Rules”? for this present 116th Congress? The U.S. Senate’s website which links to the “Standing Rules’ includes no rules on Impeachment but the Senate Manual refers to Rules for the 113th Congress (which expired in 2015) which include such Rules. These Rules include an Oath of impartiality to be taken by the Senators as well as Rules authorizing the managers of the impeachment prosecution to subpoena witnesses whom the Chief Justice as the presiding officer could order to appear. Could it be that the Republican majority, anticipating a showdown between a Democratic Congress and Trump, deliberately chose not to adopt any such Rules so that their hands would not be tied by quaint technicalities like taking an Oath of impartiality?
The Constitution requires “an oath,” but it doesn’t say what the oath must include.
Frankly, I don’t think McConnell, Graham, et al. would be troubled in the least by the words of an oath.
Eric:
I like Frank Capra movies too. I only hope and pray that the outcome of this impeachment against President Trump will have a good ending like one of those movies, that the Republican Senators who feel compelled to stand behind him, no matter what, will find it in their hearts, as you say, to do what is right for our great country. To at least listen to the case against the president and not have made up their minds beforehand to find him innocent of any wrongdoing. There is NO one above the law and the Rule of Law must prevail. This isn’t Russia – this is AMERICA – land of the free and home of the brave. Let’s remember that when we go to vote in Nov. of 2020.
Oh, and Eric: Merry Christmas and Happy New Year. Thank you for your articles. I enjoy them very much – they help to enlighten me, as I’m sure they do for other readers as well. I always learn something, and that’s important to me. God bless you and yours.
Let’s add Hanukkah to that!
Biggest concern in the Senate is the dems pulling pulling out a middle of the night surprise with some fake story(stories) that can’t be proven. They proved in the Kavanaugh hearings they will stiop at nothing to win. Heck, the the whole party has done that to the President since beofre he was elected.
Well, surely you have “proof” on all those accusations. At least a deep state whistle blower complaint.
Didn’t have to.
He did it to himself.
A very good piece from Jennifer Rubin at the WAPO. A main point being that maybe Pelosi looks at the Senate rules, decides that they are a shame and simply decides to not deliver the Articles of Impeachment until the rules are fair: leaving Trump to fume and twist in the wind. He gets the black mark of impeachment and no chance to crow about his acquittal.
http://www.startribune.com/how-far-can-house-go-to-stop-a-sham-impeachment-trial-in-senate/566289132/
Why would there be any Senate rules to evaluate? Until the House sends Articles to the Senate, there is impeachment. The Speaker of the House holds no sway in the Senate, she doesn’t need to be appeased.
Sounds like, why do we need plans to build a house? The building materials aren’t even here yet!
I believe that that requirement has been updated.
The Q’ran is acceptable, as I believe are other alternatives for unbelievers.
It will be moral courage to watch what happens in the Senate. Cynicism is keeping my toes toasty warm. Beyond that there seems to be no other consequence for these cold hearted interlopers. And now as the result of gerrymandering and outright rules manipulation by Mitch the courts are taking a hit so huge that they may never be reasonable again. Cruelty seems to be the buzzword of the day and maybe the decade. There are too many caught in the box of conspiracy and proving their domineering capacity screaming “get over it” at every turn of the screw. The unpoliticians of feudalism with a ready excuse of victimhood to cover their inhumanity. It just needs to stop.