Impartial Jurors in the Senate? Don’t Hold Your Breath

On Thursday we learned that three Republican senators, Ted Cruz, Mike Lee and Lindsey Graham, separately met with defense counsel for Donald Trump. This took place the very evening before Trump’s lawyers were to begin their main arguments in his defense.

The ex parte visit by the senators drew immediate condemnation, as wells as calls for the senators to be disqualified as “jurors” for the trial. How could those sitting in judgment of the president also meet and discuss the trial with his defense attorneys? Shouldn’t they be sanctioned for this behavior, with their right to serve as jurors relinquished?

The answer will likely disappoint—and perhaps even enrage—many. Per the Constitution, senators are indeed under oath to be impartial during the impeachment trial, and in fact do traditionally swear an oath to “do impartial justice under the Constitution and the laws.” But the Senate under the very same section also has the “sole power to try impeachments.” This means, practically speaking, there is no way to remove a Senator who violates this oath of impartiality. What this has meant historically is that bad behavior by the senate “jurors” (e.g. skipping presentations, not paying attention during the trial, or even meeting with the accused or his attorneys) has been met with zero enforcement.

This is thus very much unlike a jury in a court of law, where any juror who has prejudged the case, or performed his or her investigations, or spoken to others outside of the court about the case, can be removed for partiality by the judge. Indeed, the case here is even more curious because each of the senators was also a witness to what occurred on January 6. They all had to flee the mob that Trump allegedly incited. In a court of law, because of their personal experience with the underlying events, they could not have served as jurors.

The impeachment process is inherently political, so it is sadly not even expected that senators will be impartial when assessing the case. There is very often lip service about keeping an open mind, but again there is no mechanism by which a senator who has demonstrated partiality can be punished for it. Thus, we hear Senator Lindsey Graham stating, even long before the trial had even begun, that acquittal is a foregone conclusion. It hardly engenders faith in the system.

Can this be fixed? Not without a change to the U.S. Constitution, or a change to the Senate rules around this, neither of which is likely to happen. We might need to accept that the impeachment and its trial is less about forcing a punishment upon the president and more about holding his party to account for his behavior. And make no mistake, the GOP is as much on trial here as Trump himself is. The Democrats know this: They are making their best case in order to score strong political points with the public. They want to tie the GOP to the man who incited a violent insurrection by a mob and run those ads in 2022.

Judging by public opinion polls, the Democrats are so far succeeding. Ironically, then, a not guilty verdict, in spite of all the evidence, might actually further cement the public’s ire toward the GOP and drive home that it is a party without principles or accountability.