Quantcast
Connect with us

GOP senators’ silence on Trump hearings suggests they may be considering impeachment seriously

Published

on

- Commentary

Several Republican senators have taken a “vow of silence” on the impeachment inquiry in the House of Representatives.

Maine Senator Susan Collins has described her position this way: “I am very likely to be a juror so to make a predetermined decision on whether to convict a president of the United States does not fulfill one’s constitutional responsibilities.”

ADVERTISEMENT

From a purely political standpoint, the senators’ choice is beneficial for both parties. The senators cannot find it easy to speak approvingly of the president’s opportunistic conduct with foreign countries, so silence is probably the most graceful position for the Republican Party.

The silence is also helpful from the Democratic Party’s perspective. Democrats would no doubt prefer that the senators just abandon Trump immediately, but that seems unlikely to happen. The silence at least preserves the possibility that they will convict Trump if and when the time comes.

That said, there is nothing requiring the senators to remain silent on the issues. No written law or rule instructs senators to take that approach. The Senate’s Rules on Impeachment Trials do not address pretrial conduct at all.

The senators’ choice seems to stem instead from a decision to treat the impeachment proceeding much like a judicial trial. As a professor of Constitutional law, I find that analogy quite apt.

Constitution lays it out

Under the Constitution, the House of Representatives is granted the exclusive power to impeach – or bring charges against – officers of the United States, including the president.

ADVERTISEMENT

Once articles of impeachment (charges) are passed by the House, they are brought to the Senate for trial. Members of the House are named “managers” of the impeachment and are responsible for bringing forth evidence to support the charges.

Chief Justice John Roberts would preside over an impeachment trial of the president.
Steve Petteway/Wikimedia Commons

When the president is the impeached party, the chief justice of the United States must preside over the trial. Both the chief justice and all of the members of the Senate take a special oath, swearing that “in all things appertaining to the trial of the impeachment,” they “will do impartial justice according to the Constitution and laws.”

The president cannot be convicted and removed from office unless two-thirds of the senators vote for that outcome.

ADVERTISEMENT

Legal or political?

This process is readily comparable to criminal proceedings in the courts.

In both, the charging function and the trying function are distinct and are carried out by different institutions. The House arrives at the specific charges, votes to proceed (much like a grand jury), and then presents to the Senate the evidence in favor of conviction (much like a prosecutor). The Senate simply listens to the evidence and votes, just as a jury would in a criminal proceeding.

ADVERTISEMENT

Although some might argue that having the Senate decide the question renders impeachment trials a political rather than legal event, the history of the impeachment provisions suggests otherwise.

James Madison at age 32, in 1783.
Charles Willson Peale/Wikimedia Commons

In James Madison’s draft of the Constitution, he conferred the power to impeach the president on the House of Representatives, just as the Constitution reads now, but Madison had the Supreme Court, rather than the Senate, conducting the trial.

Ultimately Madison’s position was defeated not because a judicial proceeding was a bad idea, but because his framing colleagues worried that relying on the Supreme Court raised several particular concerns.

ADVERTISEMENT

Gouverneur Morris thought the justices might unduly favor the president, given that he would have appointed them. Alexander Hamilton thought the court was just too small a group for such a momentous decision, and also might be called into play later if the president were criminally prosecuted after his removal.

Respecting the process

Because impeachment gives rise to a proceeding akin to a criminal trial, the senators’ silence may not be required, but is appropriate.

In federal and state trials all over the country, courts routinely instruct jurors to refrain from drawing a conclusion – and refrain even from speaking with other jurors – until all the evidence is in. The “pattern” instructions the courts rely on usually include an instruction like this: “Do not discuss this case among yourselves until I have instructed you on the law and you
have gone to the jury room to make your decision at the end of the trial. Otherwise, without realizing it, you may start forming opinions before the trial is over.”

Rules governing federal and most state trials note the importance of keeping personal views private until all the evidence is in, and all the arguments are made.
American Bar Association

Rule 2.10 of the Model Code of Judicial Conduct, which has been adopted by the vast majority of states, directs judges not to commit publicly to stances on issues that may end up before them.

ADVERTISEMENT

The idea is that when people publicly state a position, it is much harder for them to consider impartially evidence suggesting that their public position was wrong. Put simply, face-saving must not become more important than making an impartial decision.

There is some public cost to the senators’ choice to remain silent. To the extent that the senators decline to address the emerging impeachment issues, their constituents are unable to evaluate their oversight of the president.

That period of ambiguity, however, is brief. It will end the moment that each senator rises in the chamber and casts a vote to acquit or to convict.

So Republican senators are not legally required to remain silent in the face of becoming jurors, but their doing so in service to impartiality makes sense given the gravity of the proceeding.

ADVERTISEMENT

Democrat Raymond Thornton of Arkansas voted to impeach President Richard Nixon in 1974. In an interview with a historian the year after the impeachment, Thornton explained his approach to the momentous responsibility he had faced.

“I wanted to get it right,” he said.

“I considered that this was most likely the most important task I would ever have in government and that my whole effort should be given to the study of it and to try to come up with an answer that was fair and right and which I could live with for the rest of my life.”

[ Like what you’ve read? Want more? Sign up for The Conversation’s daily newsletter. ]The Conversation

Lynne H. Rambo, Professor of Law, Texas A&M University

ADVERTISEMENT

This article is republished from The Conversation under a Creative Commons license. Read the original article.


Report typos and corrections to: [email protected].
READ COMMENTS - JOIN THE DISCUSSION
Continue Reading

2020 Election

Sanders will not attend AIPAC conference over concern for ‘basic Palestinian rights’

Published

on

"You can support the Palestinian and Israeli people without supporting leaders or organizations that oppose the freedom and liberation of the Palestinian people."

Democratic 2020 presidential primary frontrunner Sen. Bernie Sanders earned the praise of progressives after announcing on Sunday he would not attend the annual AIPAC conference due to his concerns over the group's willingness to endorse the views of bigots and its dismissal of the human rights of Palestinians.

Continue Reading

2020 Election

Millions of people can vote but don’t — even in swing states. Here’s why

Published

on

PHILADELPHIA — Patricia Robinson registered to vote when she was 18.At 79, she still hasn’t seen anybody worth voting for.“I don’t vote because I haven’t seen anybody that doesn’t have their hand into something,” she said. “They’re all a bunch of crooks.”Robinson, a retired hospital worker in Erie, is one of 100 million people who sit out election after election, according to a new study. Nonvoters have a number of reasons for not participating. But in general they tend to dislike politicians and political parties, distrust the electoral system to accurately count votes and the political syste... (more…)

Continue Reading
 

2020 Election

Is corporate media creating a misleading impression of voter sentiment? 91 percent of Nevada Dem voters said ‘no’

Published

on

We caution readers to be very careful in interpreting the Democratic primary election results so far for reasons cited below. We think the way our major news organizations are reporting the primary results can easily create a misleading impression of voter sentiment.

The analysis below should give you pause whether you think Sanders is, and should be, a shoo-in to beat Trump or you fear that a Sanders nomination will ensure a second Trump term and a romp by Republican Congressional candidates.

We ask ardent supporters and foes of Sanders, or any other candidate, to avoid a hot or presumptive reaction to what follows, a concern based on many responses to some of my caucus night tweets and Facebook posts in recent weeks.

Continue Reading
 
 
close-image