I wrote an op-ed in the Washington Post, arguing that the Chief Justice should not permit Senator Mitch McConnell to swear a false oath: Senate rules require that a Senator “solemnly swear” to be “impartial.” McConnell has expressly stated that he cannot be “impartial.”
My essay triggered a ton of responses, many of which argue that many Senators have already made up their mind. That makes my argument itself, the claim is, selective and hence, partial.
These replies belie a fundamental misunderstanding about the meaning of the word “impartial.”
Consider a version of the President’s own favorite hypothetical:
Imagine that the President, walking down Fifth Avenue, surrounded by network and smartphone cameras, takes a gun and shoots someone. Imagine 10 cameras capture the event clearly. Imagine video images are then blasted from one end of the world to the other. And then imagine, contrary to the President’s own understanding of the law, he is arrested and tried for murder.
Ordinarily, the law seeks jurors who don’t know anything about a case. But sometimes that’s not possible, and it would not be possible in a case like this: Everyone would have seen the event, no doubt, multiple times. Everyone would thus come to the jury box having a view about what happened.
Yet that alone would not make every juror “partial.” The question of partiality is whether the juror can commit to deciding the President’s guilt on the basis of the evidence presented—and not, for example, on the basis of the President’s politics or party or incredible good looks. And so long as a judge could be convinced that a juror in good faith has made that pledge, the judge would have no reason not to permit a juror to swear an oath to be “impartial,” at least if there were no other competent jurors who hadn’t seen the evidence in advance.
The same is true for the President’s impeachment. The question of “impartiality” is not whether someone has developed a view of the most important political story of our time. How could a Senator not have developed a view — based on what he or she has seen so far? The question instead is whether the Senator, in good faith, can pledge to determine the President’s guilt on the basis of the evidence and law presented — and not, for example, on the basis of the President’s politics or party.
It is in this sense that it was perfectly obvious and honest for McConnell to say that he could not be “impartial.” The United States Senate has literally never seen a Majority Leader so shamelessly partisan — and proud of it. McConnell made up a new rule to block the consideration of Obama’s nominee for the Supreme Court, Merrick Garland (“not in an election year”), and then when asked whether he’d apply the same rule to a Trump nominee, said that he would not. What’s the difference between an Obama nominee and a Trump nominee? Democrat versus Republican.
There’s nothing in the Constitution that forbids the Republicans from selecting a partisan hack as their Majority Leader. But there is something in the Constitution — namely, the Impeachment Oath—that blocks an openly partisan Senator, someone who has openly declared that he cannot be “impartial,” from serving as a juror in a trial of impeachment. There is no way that Senator McConnell can honestly swear to decide this case on the basis of the facts and law, and not on the basis of his own partisan preferences. And whether or not you believe that other Senators are similarly politically guided, at least they have not been so stupid as to say so openly. Flouting the norm of the Constitution adds insult to injury.
It may be that none of the Framers envisioned a Congress as partisan as ours has become. But whether or not they did, they expressly required the Senate to act — in at least this case—as something other than a partisan body. If McConnell can’t play that role — as he plainly cannot—then he should sit this one out.