We reprint this article now because of the House's vote yesterday to impeach President Trump.
An affirmative vote on two Articles of Impeachment has just occurred. Now all eyes will turn to the Senate.
The Constitution gives the Senate the “sole Power to try all Impeachments” (Article I, section 3, paragraph 6). This is a political process only in the sense that an elected branch of government, rather than the courts, exercises judgment. In all other respects, the Constitution makes this a legal process. The Constitution specifies the relevant legal standard -- “Treason, Bribery, or other high Crimes and Misdemeanors” (Art. II, section 4). In the case of Presidential impeachment, the Constitution specifies that the Chief Justice shall preside at the Senate trial.
Most strikingly, Article I, section 3, clause 6 specifies that Senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation.” Senators all swear a general Oath to uphold the Constitution, but the Oath taken in impeachment trials is more finely tuned. It is a juror’s oath, not a legislator’s oath. Rule XXV of the Senate Rules in Impeachment Trials provides the text: ”I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”
The Senator’s Oath in impeachment trials addresses the tension between the political and legal character of impeachment. The requirement of “impartial justice” means that every Senator must decide from behind the veil of ignorance -- that is, as if he or she did not know the party affiliation of the person impeached. This includes evaluating the evidence, and deciding whether the proven misconduct justifies removal from office. Senators violate their oath if they apply friendlier standards to Presidents of their own Party than to those of the opposing Party.
Consider the Clinton impeachment trial in this regard. Clinton had been impeached for perjury to a grand jury and obstruction of justice in a civil case, all connected to matters involving a private, sexual relationship. Senators of both parties disagreed, quite reasonably, on whether the charges involved a High Crime -- in Hamilton’s words, an abuse or violation of a public trust (Federalist No. 65). Democrats said they did not; some Republicans agreed, and therefore voted to acquit on one or both charges. We cannot fairly say that any Senators, on either side, violated their oath to render impartial justice – that is, to judge the case no differently if the accused was a member of their own party or the opposing party.
Now consider the case of Donald Trump. Can any Senator honestly say, while under an Oath to render impartial justice, that he or she would vote to acquit a President of the opposing Party if it were proven that the President used security assistance as leverage to extort a phony political investigation from a foreign nation? We find that utterly implausible. This is a classic abuse of public authority for private gain – in this case, political rather than financial. Any Republican Senator who would vote to remove a Democratic President for such misconduct must, by their Oath, vote to remove Trump.
The cynics among our readers will dismiss the argument we have made. Senators, these cynics will say, are political animals, and they will answer the call of Party loyalty and constituent opinion. Perhaps. But if Senators reflect on the seriousness and the content of the Oath to do impartial justice under the Constitution, they may prove the cynics wrong. They may recognize that acquitting a President of their own Party on a charge for which they would convict a President of the opposing Party is a betrayal of the Republic. And if they believe in the God before whom they swear, they will realize that their vote of acquittal betrays their God as well.
The authors are on the faculty of George Washington University. Ira C. Lupu is F. Elwood & Eleanor Davis Professor of Law Emeritus, and Robert W. Tuttle is David R. and Sherry Kirschner Berz Research Professor of Law and Religion.