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.”
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.
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.
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.
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.
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.
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.”
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.
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.
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.”
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How Democratic women drove the 2018 blue wave
After Hillary Clinton lost to a talking yam with criminal tendencies in 2016, a number of people got antsy about the idea that the country was really ready yet to embrace women in politics. But a huge number of Democratic women rejected that narrative and instead decided that the solution was for more women to run for office. The result? A record-setting number of women elected to Congress and a Democratic majority in the House of Representatives.
This artivcle first appeared in Salon.
WATCH: Pete Buttigieg surges to first place in ‘gold standard’ poll of Iowa caucuses
South Bend Mayor Pete Buttigieg surged in a poll of Iowa released Saturday night.
The poll, by Des Moines Register, CNN and Mediacom, showed major movement in the race.
"Since September, Buttigieg has risen 16 percentage points among Iowa’s likely Democratic caucusgoers, with 25% now saying he is their first choice for president. For the first time in the Register’s Iowa Poll, he bests rivals Joe Biden, Bernie Sanders and Elizabeth Warren, who are now clustered in competition for second place and about 10 percentage points behind the South Bend, Indiana, mayor," the newspaper reported.
More female Republicans will lose in 2020 as ‘misogynist’ Trump wages a ‘war on women’: Ex-GOP candidate
President Donald Trump's actions will harm female Republicans at the ballot box in 2020, according to a former GOP counsel for the House Oversight Committee.
Sophia Nelson, who ran for Congress as a Republican, made her argument in The Daily Beast.
"Donald Trump has attacked so many women in so many ways for their looks, their age, or their position it can be hard to keep track," Nelson wrote. "But the president took his attacks on strong, accomplished and independent women even further in his attacks on his own U.S. ambassador, Marie Yovanovitch, telling Ukrainian President Volodymyr Zelensky that 'the former ambassador from the United States, the woman, was bad news.' That was in the now infamous phone call that led to the impeachment hearings that began this week, and Friday, in the middle of Yovanovitch’s testimony there, he tweeted that 'everywhere Marie Yovanovitch went turned bad.'”