The House of Representatives is expected to vote today to send articles of impeachment against President Donald Trump to the Senate. The result will be a “trial” in the Senate in which the senators act as “jurors” to convict or acquit the president of the charges in the articles. It is a serious time that calls for serious and thoughtful action.
But what makes a fair impeachment trial? One obvious answer is fair and impartial jurors. Majority Leader Mitch McConnell, the most powerful senator in the impeachment process, has already made it clear he is “not an impartial juror.” It is up to his fellow senators, including Florida Republicans Marco Rubio and Rick Scott, to decide if they will follow his lead.
McConnell’s position is that an impeachment trial is different than a criminal proceeding. It is a political exercise, he argues, and therefore does not require that senator-jurors behave the same as citizen-jurors.
McConnell is only half right. He is right that an impeachment trial is a political process, and therefore different from a criminal trial. He is wrong, however, about what that means for the senators involved. Impartiality is more important in an impeachment trial than in a criminal one, not less.
Criminal proceedings come with a predetermined set of procedures — like subpoenas, witness testimony, documentary evidence, and a right to appeal — that help create an even playing field for the two sides regardless of who the jurors are. The Senate may adopt similar procedures in an impeachment trial, but are not required to do so.
Impeachment relies on two different forms of impartiality. It of course requires that the jurors not make up their mind in advance. This is true for all trials, but in traditional trials the parties meet and choose their jurors beforehand. They exclude any potential jurors who may have already decided the facts of the case. In impeachment, our jurors are chosen for us. We cannot exclude them, even if we believe they have decided the case before it begins.
That is why it is so vital that the senator-jurors in the president’s impeachment trial appear impartial to the viewing public. They can do this by refraining from making statements like McConnell’s. They can also do so by adopting procedures, such as allowing both sides to call witnesses, designed to collect all of the relevant facts.
The appearance of fairness is important in traditional trials, but is even more important to impeachment. Impeachment is Congress’s only tool to preserve the constitutional balance of powers by holding the president accountable for violating his constitutional duties. It directly concerns every member of our society. Faith in our government depends on that decision seeming fair and just to the people that government represents.
A lack of predetermined procedures and of impartial jurors not only makes it unlikely the charges against the president will be decided fairly, but it also gives the public less confidence that the outcome is justified. Our founders left the Senate in charge of creating a fair and transparent impeachment process that is acceptable to the nation as a whole. Our current senators would do well to follow their lead.
Professor Louis J. Virelli III teaches Constitutional Law, Administrative Law and Civil Procedure at Stetson University College of Law. He has published widely in the areas of constitutional and administrative law, including his book, “Disqualifying the High Court: Supreme Court Recusal and the Constitution” (Univervsity Press of Kansas 2016). ), and is a faculty adviser to the Stetson Law chapter of the American Constitution Society.