Impeachment oath.

Senators, abide by your impeachment oath

Opinion by Michael Zeldin

At the outset of the Senate impeachment trial of President Donald Trump Thursday, Supreme Court Justice John Roberts, mandated by the Constitution, required each Senator to swear an oath to do impartial justice according to the Constitution and the laws of the United States.

Article I, section 3, clause 6 of the Constitution provides: "The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present."

The oath provides: "I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [Donald John Trump], now pending, I will do impartial justice according to the Constitution and laws: so help me God."

In combination with the general oath to defend the Constitution against foreign and domestic enemies that each member takes upon being sworn in as a Senator, the oath makes explicit that in the context of an impeachment trial of the president, senators must be bound by an impartial duty to the country and the Constitution. Any and all political motivations must be put aside for them to fulfill their constitutional duties.

How each member interprets his or her obligations under this oath and how the Chief Justice enforces them will determine whether the Senate acts consistently with its constitutional responsibilities.

What then should be expected of the chief justice and the legislative body the framers of the constitution entrusted with this most solemn responsibility?

1. The chief justice must ensure that the trial is fair to the litigants. Chief Justice William Rehnquist ruled in the Clinton impeachment trial, "[t]he Senate is not simply a jury. It is a court in this case [too]." As such, he instructed that the House managers refer to the Senators as "triers of law and fact." (He referred to himself as "the Chair.")

While this is constitutionally correct, at the end of the process, the Senators must also vote to convict or acquit. To this end, and notwithstanding the dual role the Senators perform, Roberts should, at the outset, voir dire -- or question -- every Senator individually until he is satisfied that each can fulfill the obligations of the oath. This is especially important in this case where at least two Senators, Majority Leader Mitch McConnell and Lindsey Graham, already have declared in essence that they have no intention of honoring the oath.

(McConnell said on Fox News: "Everything I do during this, I'm coordinating with White House counsel. There will be no difference between the president's position and our position as to how to handle this to the extent that we can." And Graham has stated: "I am trying to give a pretty clear signal I have made up my mind. I'm not trying to pretend to be a fair juror here.")

If the chief justice is not satisfied with the answers he receives from any senator, he should excuse the senator unless a majority of the Senate (acting in its "judicial role") in a publicly recorded vote overrules his determination and provides a satisfactory explanation for its decision.

2. Each senator should undertake his or her obligation to "do impartial justice" without regard to political affiliation. It would be a betrayal of the oath to do otherwise. While there is no way to assure this and there is a legal and political tension in a presidential impeachment trial, at a minimum, the Senate deliberations should be held in private. An impeachment trial is too serious an occasion for the political grandstanding that public deliberations will guarantee. Some have argued that the vote to convict or acquit also be held by secret ballot (as in the case of ordinary juries) to allow senators to vote without fear of retribution, but I worry about the lack of public accountability this invites. It is something, however, the senators could consider it if they believe it will help them honor the oath.

3. The web page of the United States Senate, in discussing the Senate's role during impeachments, states: "The Senate sits as a High Court of Impeachment in which senators consider evidence, hear witnesses, and vote to acquit or convict the impeached official."

This requires that all relevant witness and documentary evidence that bears on the guilt or innocence of the impeached officeholder be brought forth and evaluated. This occurs every day in criminal trials across America, and has been the norm in every other impeachment trial conducted by the Senate. The oath requires nothing less.

Some have argued that the Senate should not fill in the evidence that the House did not bring forth to the Senate. This argument confuses a trial with an appeal. Trials are where evidence is heard irrespective of when the evidence was discovered. Appeals evaluate verdicts based on the evidence adduced at trial. The Senate sits as a trial body, not a court of appeals. No criminal court would tolerate a situation where newly discovered, relevant evidence acquired post-indictment was not admitted into evidence solely because it was acquired after the grand jury indicted. The Senate shouldn't either.

4. The Federalist Papers -- 85 articles and essays by Alexander Hamilton, James Madison and John Jay -- were written in an effort to promote the ratification of the Constitution. In Federalist 65, Alexander Hamilton argued that "there will always be the greatest danger that the [impeachment] decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt." To mitigate this risk, the constitutional framers placed the responsibility to try impeachments in the Senate. As Hamilton wrote:
"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?"

Accordingly, the oath requires that senators act impartially, uninfluenced by public opinion, without allegiance to the impeached official, or political party. Any senator who is seen by his or her peers or the chief justice during the course of the trial to be unable or unwilling to act impartially in accordance with the oath should be excused upon motion by a majority vote.

5. Given that the actions of the Senate are non-reviewable by a court, it is incumbent upon the Senate to ensure that the process is credible. This is the core obligation of the oath. In my view, nothing could do more to belittle the oath and undermine the credibility of the process (thereby denying the country the closure that an evidence-based verdict is intended to achieve) than to precipitously dismiss the charges. The American people are constitutionally owed a full and fair trial.

By strict adherence to the oath, each senator, as its steward, will ensure that her or his name will be recorded by posterity as one who proved him or herself as equal to the trust expected by the constitutional framers. History will record those who dishonor the oath as unequal to that grand trust. And that will be their legacy.