Don’t let the shared nomenclature fool you. The upcoming Senate impeachment trial of President Donald Trump, like a criminal trial, will feature a presiding judge; the case will be tried to a jury; the proceedings will involve opening and closing arguments; and the final determination will be a conviction or an acquittal. Heck, they’re both called “trials.” But if you’re expecting the Senate impeachment trial to bear substantive resemblance to a criminal trial, prepare for disappointment. Terminology notwithstanding, the two trials are about as similar as a ring (the kind married people wear) and a ring (the kind boxers fight in).
The most important difference is the jury. In a criminal trial, the jury consists of 12 everyday citizens chosen randomly from the population and screened for bias by the attorneys and judge, and a verdict requires unanimity. In the Senate, the jury is the Senate itself — all 100 members, with two-thirds supermajority of those present required to convict.
Both types of jurors must take an oath of impartiality, but in the Senate that oath is mostly bunk. Senate Republican Majority Leader Mitch McConnell has brazenly declared that he will work in “total coordination” with the White House — one of the parties before him — and that “I’m not an impartial juror.” Similarly, Republican Senator Lindsey Graham admitted (perhaps even boasted) that “I’m not trying to pretend to be a fair juror here.” This tendency to pre-judge runs across the aisle; Democratic Senator Elizabeth Warren has preemptively declared that “What he has done is an impeachable offense, and he should be impeached.” How these Senators reconcile their public pronouncements with the oath they soon will take — to “do impartial justice according to the Constitution and laws, so help me God” — is beyond me. I hope the television cameras zoom in on these Senators as they raise their hands and take the oath, so we can see if they even blink at the cognitive dissonance.
Yet it seems what distinguishes McConnell, Graham and Warren from their colleagues is degree of candor. We likely will end up with a straight party-line vote, or nearly that, when all is said and done. What are the odds that all 47 Democrats happen to independently determine on the merits that the evidence requires conviction, while all 53 Republicans independently conclude that it falls short?
The differences between a criminal trial and an impeachment trial go deeper. Pursuant to one of the Constitution’s very few specific instructions on impeachment, Chief Justice John Roberts will “preside” as judge over the impeachment trial. But do not expect him to make bold or even binding decisions on evidence and witnesses, as a criminal trial judge would do. The Chief Justice’s role in the impeachment trial is more traffic cop than rulemaker, as a majority vote carries any issue relating to procedure or admissibility of evidence. Chief Justice William Rehnquist proudly declared after presiding over the 1999 impeachment trial of President Bill Clinton that “I did nothing in particular and I did it very well.” Do not invest much in the hope that Chief Justice Roberts will (or even can) defy the majority rule and turn the impeachment trial into a criminal trial-like proceeding.
And while some of the procedures in the Senate trial will resemble what we know from the criminal realm, including opening and closing statements, the difference is in what happens in between. Senate Democratic Minority Leader Chuck Schumer formally requested that the Senate call four fact witnesses at Trump’s upcoming impeachment trial. The response from McConnell was, essentially: you’ve gotta be kidding me. (How naive of Schumer to think that it might be appropriate to call a small handful of witnesses at a trial).
Even in the Clinton impeachment trial, with the Republicans holding the Senate majority, there were no live witnesses. Rather, the Senate saw clips of videotaped depositions of three witnesses (including Monica Lewinsky), out of dozens with relevant knowledge. And now the Clinton impeachment trial, spare as it was, is being held up as a paragon of process and substance, with Schumer citing it repeatedly in his plea to McConnell for witnesses at the upcoming Trump trial. Think of both a Senate impeachment trial and a criminal trial as a sandwich, with two pieces of bread as the opening and closing statements; the difference is, in the Senate version, there’s little or no meat in between.
It is not quite right to say that “impeachment is a political process, not a legal one” (as the common talking point goes). Impeachment comes directly from the Constitution, so it is inherently a legal process. More accurately, impeachment is a political process, not a criminal one — or even, according to McConnell, a genuinely inquisitorial one.
We now face a real risk of taking things too far, if we simply accept the McConnell view that a Senate impeachment trial should be nothing more than an empty political foregone conclusion. There is an optimal balance, and we seem to be on the brink of tipping it. No, a Senate impeachment trial is not engineered to discover truth as efficiently or nimbly as a criminal trial. But if the Senate acts in good faith, it still can use the trial as a vehicle to uncover facts and move towards truth. And if we accept the McConnell perspective, or if it becomes the new norm — that a Senate impeachment trial is nothing but political show — then we trivialize a process intended to maintain the balance of powers within our Constitutional democracy.