12 Oct What Impeachment Cases Need is a Normal Trial
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation….And no Person shall be convicted without the Concurrence of two thirds of the Members present.” U.S. Constitution, Article I, Section 3.
From the standpoint of one who tried many cases to juries in 32 years as a trial lawyer, the two most recent impeachment trials offered an interesting comparison to how a trial would be handled in the real world—with a real court and real jury—if the Constitution did not grant that power to Congress in cases involving a president. And the comparison begs for the same standards of juror fairness, evidence, the rule of law, and, most of all, no “prejudice” allowed to taint the process.
If the Senate someday can view itself in the role of a true jury and vote according to the evidence and law, we all will be better off.
Trial by Jury
According to Black’s Law Dictionary, “Trial by jury” is defined as being one “in which the issues of fact are to be determined by the verdict of a jury, duly selected, impaneled, and sworn.” So far, so good, with impeachment trials. Our Constitution has selected a jury for us.
But the definition continues: “A jury for the trial of a cause was a body of [jurors], described as upright, well-qualified, and lawful…disinterested and impartial…sworn to render a true verdict according to the law and the evidence given them, who, after hearing the parties and their evidence, and receiving the instructions of the court relative to the law involved in the trial, and deliberating, when necessary, apart from all extraneous influences, must return their unanimous verdict upon the issue submitted to them.”
Therein may lie challenges. As idealists, however, let us look at how impeachment trials would play out if it were a model trial by jury.
First, jurors typically would be selected through a process that weeds out anyone who comes into the courtroom with preconceived notions of the outcome. This process is called by the French and Latin phrase voir dire, which means “to speak the truth.” It is the process during which potential jurors are questioned by the lawyers and the judge to determine their suitability for jury service. In short, unless they will be unbiased, they are stricken from the jury and sent home. We need open-minded jurors who will listen to the evidence, review any exhibits presented, pay close attention to what the judge says the law is, and make a careful, dispassionate decision.
With the current Senate split 50-50 between Republicans and Democrats and having operated recently with—shall we say—a high level of partisanship, the first challenge is for the jurors to set aside any preconceived notions. Factors such as the political parties to which they belong. That apparently did not go so well with the trials in the two recent impeachment cases, as only one senator in the first case and then seven in the second voted the way others in their parties did not. In fact, those few are the only United States Senators ever who have voted to convict a president of their own party.
In a real trial, if a potential juror revealed in voir dire that he or she was a member of a certain group (such as the Kiwanis or even a book club), that the defendant was a member of the same group, and that this connection would make it make it difficult to listen to the evidence and reach a fair, unbiased verdict, the potential juror would be removed immediately.*
*In one case, a would-be juror was sent home from a federal case in St. Paul, Minnesota, simply because he went to the same church as this blogger, who was not even “on trial” himself but was the lawyer for one of the parties in the case.
Obviously, the entire Senate would be stricken as jurors if the rules of civil jury trials were followed, and the authors of our Constitution saw this coming. That is why the second key element was added for impeachment trials: “they shall be on Oath or Affirmation.” Brilliant! The senators swear to listen to the evidence, be unbiased, and vote according only to the evidence and law. This is similar to the oath real jurors take before any normal trial.
Here is the actual oath from the Senate Impeachment Rules, as adopted in 1868: “I solemnly swear (or affirm, as the case may be,) that in all things appertaining to the trial of the impeachment of [insert name], now pending, I will do impartial justice according to the Constitution and laws: so help me God.” That same oath was administered in the January 2020 and February 2021 impeachment trials.
Another significant aspect of a normal trial involves the evidence itself. In jury cases, lawyers give relatively brief opening statements and closing arguments, but the bulk of a trial involves sworn witnesses testifying from first-hand knowledge—what did you see, what did you hear, what did you do, why did you do it, what did you observe other people doing. Typically, non-testimonial evidence, including documents, pictures, texts, emails, video and audio recordings, and other electronically-stored data, also would be introduced and verified by live witnesses as accurate.
If evidence were presented in the normal fashion and senators could do what jurors normally do quite well, they should be able to determine the facts of any impeachment case. Fact finding is one of the key jobs of jurors, along with applying the law to those facts.
Impartial Justice
Lastly, we will need to go back to the oath, the sworn promise “to do impartial justice according to the Constitution.” Impartial justice. In short, the juror/senators in impeachment cases must follow the law, regardless of the outcome.
Whichever way any future impeachment case turns out, it would be helpful for our country if there were a sense that the verdict rendered was indeed impartial and is as required by law. That sense helps the parties deal with the results of normal cases, and it would be particularly healing in an impeachment scenario. These trials always come at a time when our country desperately needs healing.
Written by Quentin R. Wittrock, founder of Principle Based Politics.
Look for his posts twice each week, as this blog will explore and promote the idea of principle in politics, both as to individual elected leaders and our federal government as an institution.
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