Open Letter

Open Letter to the United States Senate
 

June 28, 2021

January 7, 2020

Photo Credit:
Esc Leo / Shutterstock.com

Dear Members of the United States Senate:

We are lawyers deeply committed to the Constitution, the rule of law and preserving the priceless American democratic form of government.

Since the House has impeached President Donald Trump, the critical questions now are whether the Senate will provide an impartial trial process and whether senators will vote impartially or serve their own partisan self-interests.

Senate Majority Leader Mitch McConnell has dramatically framed the issue.  He recently said: “This [impeachment] is a political process. There is not anything judicial about it.” “I’m not impartial about this [process] at all….I’m not an impartial juror [.]”

Leader McConnell’s assertions cannot withstand scrutiny.

Just because the Constitution commits the impeachment process to a “political” branch of government and senators may legitimately promote their partisan self-interest as part of the legislative process, does not mean they are permitted to do so when serving as judges and jurors in an impeachment trial. To the contrary, as the adjudicators of impeachment, they have a duty to serve in a quasi-judicial capacity.

The Constitution mandates that: “When sitting for that purpose [trying impeachments] they [the Senate] shall be on oath or affirmation.” (Const., Art. I, Sect. 3, Clause 6) The oath that the Senate requires every senator to take before being allowed to participate in an impeachment trial demands that they “solemnly swear or affirm…  in all things appertaining to the trial (to) do impartial justice according to the Constitution and law.” (Emphasis added) (Procedure and Guidelines for Impeachment Trials in the United States Senate, pp. 25-26 & p. 61)

Serving one’s own partisan and political self-interest in determining: the process for an impeachment trial, the legal standards for impeachable offenses, the facts – based on the evidence – and whether the facts violate the standards, would be an egregious form of being “partial.”  It would be the exact opposite of being “impartial.” 

Rather than a Senate impeachment trial being a “political” / partisan process that permits senators to make decisions based on their political party’s self-interest, senators are obligated by the Constitution and Senate rules to “do impartial justice” in all matters relating to the trial.

Similarly, Leader McConnell’s assertion that “[t]here is not anything judicial about [the impeachment process]” is directly refuted by the Constitution.  The Judiciary article itself, Article III, expressly manifests that impeachment trials are a category of federal criminal trials: “The trial of all crimes, except in cases of impeachment, shall be by jury [.]” (Const., Art. III, Sect. 2, Clause 3). Thus, impeachment trials, being criminal trials, are inherently “judicial.”

The judicial nature of impeachment trials is further borne out by other constitutional provisions. By giving “[t]he Senate… the sole power to try all impeachments [,]” (Const., Art. I, Sect. 3, Clause 6) the Constitution uses the same word “try” to describe the Senate’s responsibility as our legal system has routinely used to describe the function of courts adjudicating court cases. 

When the President is impeached, the Constitution does not permit a senator to preside over the trial; it must be our nation’s highest judicial officer, the Chief Justice of the Supreme Court. Id. The initial sanction required to be imposed on an official found guilty of an impeachable offense is “conviction,” (Const., Art. I, Sect. 3, Clause 6 and Const., Art. II, Sect. 4) which is the same initial sanction which courts impose on any guilty criminal defendant. Finally, the Constitution prescribes that when the Senate completes an impeachment trial, it needs to enter “judgment.” (Const., Art. I, Sect. 3, Clause 7). This is the same word our legal system uses to describe all courts’ determinations after completing trials in court cases.

Thus, the Constitution itself recognizes that a Senate impeachment trial must have multiple elements of a court trial. The significantly judicial character of the impeachment trial process mandated by the Constitution is further elaborated by the Senate’s own extensive rules for conducting impeachment trials, many of which parallel judicial proceedings. (Procedure and Guidelines for Impeachment Trials in the United States Senate)

In short, Leader McConnell’s notion that the impeachment process does not have judicial character and implicitly gives him and other senators free rein to conduct the trial as biased political partisans is indefensible.

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