Senate Ethics Committee Needs to Restore Impartiality in Impeachment Proceedings
By Craig Holman, Lisa Gilbert and Robert Weissman
The Hon. Johnny Isakson (R-Ga.), Chairman
The Hon. Christopher Coons (D-Del.), Vice Chairman
Senate Select Committee on Ethics
220 Hart Office Building
Washington, D.C. 20510
RE: Violation of Oath of Office by Sen. Mitch McConnell (R-KY)
‘‘I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of President Donald Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’
— Standing Rules of the Senate, Senate Manual, 113th Congress
Dear Senate Select Committee on Ethics:
Public Citizen requests that the U.S. Senate Select Committee on Ethics investigate and determine whether recent public declarations by Sen. Mitch McConnell (R-KY) on the pending impeachment trial of President Donald Trump violate the oath under the U.S. Constitution as well as the rules of the Senate requiring impartiality and warrant recusal from the proceedings.
The U.S. Constitution gives Congress the authority to impeach and remove the president, vice president and other federal officers upon determination that such officers have engaged in treason, bribery or other high crimes and misdemeanors. The Senate has sole power to try and convict all impeachments by two-thirds of the members present. Article 1, Section 3 of the Constitution states: “When sitting for that Purpose, they shall be on oath or affirmation.” The Constitution does not specify the contents of the oath, but the nature and structure of the Constitution suggest an obligation to administer impartial justice in impeachment proceedings.
The “Rules of Procedure and Practice in the Senate When Sitting on Impeachments Trials,” drafted by former Sens. Robert Dole (R-KS) and Robert Byrd (D-WV) and adopted unanimously by the Senate in 1986, are more specific. They provide that “the presiding officer shall administer the oath hereinafter provided to the members of the Senate … whose duty it shall be to take the same.” (Rule III.) The form of the oath, which is set forth following the numbered rules, is: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ____ ____, now pending, I will do impartial justice according to the Constitution and laws: So help me God.”
The notion of impartial justice is crucial to upholding Constitutional values and securing the American people’s confidence in the essential fairness of any Senate trial.
Impartiality in this context cannot and should not mean that senators enter the trial with no preconceived views or that they pretend to be a blank slate evaluating impeachment evidence for the first time. In this way, among others, senators’ role and responsibilities differ from civil or criminal jurors.
In fact, even though the Senate is expected to act like an impartial jury in the impeachment proceedings, members of the Senate are partisan politicians. They are not indifferent to the political ramifications of impeaching a president. Many members – both Democrats and Republicans – have commented extensively on the evidence and have publicly expressed their opinions on whether Trump has committed impeachable offenses. Many have publicly predicted the likely outcome of the trial. But stating that the evidence is adequate or inadequate for conviction, or predicting the outcome of the trial, is far short of rebuking the oath of impartiality and coordinating the impeachment trial with the White House, as Senator McConnell has done.
For an impeachment trial, rendering “impartial justice” must mean respecting basic norms of fairness. It must mean, first, that the trial is structured to air and evaluate all relevant evidence, without built-in favor for or prejudice against the president or impeached official. Second, it must mean that senators draw conclusions based on the evidence presented by the House Managers and any new evidence since gathered and presented by witnesses or in documents, and the application of what they determine to be the appropriate standards for acquittal or conviction. Senators may enter the trial with predetermined views, but if they are to uphold their oaths, they cannot enter the trial with a locked-in conclusion based on partisanship, personal allegiance or political calculations.
Unfortunately, the public declarations by Senator McConnell runs contrary to this oath of impartiality. Senate Majority Leader McConnell flatly dismissed the impeachment process against President Trump on several occasions. “I am not an impartial juror. This is a political process. There’s nothing judicial about it,” McConnell told reporters. “I’m not impartial about this at all,” McConnell reiterated. McConnell’s comment appears to directly contradict the Senate rules oath – not because he recognizes that impeachment is a political process or because he enters the process believing President Trump should be acquitted, but by his direct statement that he will not be impartial.
What is truly troubling about Senator McConnell’s declarations of partiality is that he is in the unique and powerful position of managing the senate trial. McConnell has indicated that he intends to establish a trial process designed not to render impartial justice, but to benefit President Trump. The Senate Majority Leader said that he will be “in total coordination with the White House counsel” on the impeachment proceedings. “There will be no difference between the president’s position and our position as to how to handle this, to the extent that we can.” These public statements were made just hours after White House Counsel Pat Cipollone and Legislative Affairs Director Eric Ueland met privately with McConnell in the U.S. Capitol to discuss the matter. It is impossible to square this coordination with the White House counsel for the duly House impeached president with any norms of fairness or the Senate rules oath.
We acknowledge that Senator McConnell has not yet taken the oath of impartiality for an impeachment trial, so technically is not yet in breach of the oath. (It is also theoretically possible for the Senate to vote to change the terms of oath to spurn the obligation of impartiality altogether.) But the intention to disregard an oath required by Senate rules to implement a constitutional requirement is clearly improper conduct that reflects poorly upon the Senate. And, the remedy of recusal, necessitated by the Senator’s proclamation, should be applied at the outset of a trial, so that the Senators who have disdained their obligation of impartiality do not poison the proceedings. Moreover, absent extraordinary measures, once the impeachment trial commences, it will be too late to cure unfair rules and processes that Senator McConnell may put in place.
The duty of impartiality is not a quaint ideal to be dismissed as a meaningless, hortatory commitment. It embodies basic norms of fairness and constitutional values. And it is a duty that has been respected in prior impeachments. In the 1999 impeachment trial of President Bill Clinton, for example, Senate leaders on both sides of the aisle sought to create rules to try the president in a “respectable way.” Former Senate Majority Leader Trent Lott (R-Miss.) and former Senate Minority Leader Tom Daschle (D-S.D.) both had their own opinions on the merit of impeaching Clinton, but also understood their obligations to the Senate as an institution. “I knew the votes were not there and were never going to be there to remove Bill Clinton,” said Lott. “So I had to figure out, working with Tom, was: How do we fulfill our constitutional responsibility in a respectable way?”
First, Lott and Daschle studied the procedures of the 1868 impeachment trial of President Andrew Johnson. Then the party leaders established a direct Lott-Daschle hotline for daily communications across party lines. In contrast to the current Senate majority leader, both Lott and Daschle sought to preserve the notion a fair trial process and to separate themselves from the White House. Daschle highlighted the importance of not coordinating the impeachment trial with President Clinton: “I needed to keep a personal distance from the president, the White House.” As a result, added Daschle, the Senate “rose to the occasion, and I think that’s what the American people expect when you face crises like this.”
At minimum, what the American people can expect and demand is that Senators honor their oaths of impartiality. Senator McConnell appears to have made clear that he has no such intention. Accordingly, Public Citizen requests that the Senate Select Committee on Ethics investigate whether Senator McConnell has violated the oath of office under the Constitution and oath of impartiality under Senate rules and, if that is found to be the case, take appropriate remedial actions through recusal from the impeachment proceedings.
|Craig Holman, Ph.D.
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 Kelsey Snell, “McConnell: ‘I’m Not Impartial’ About Impeachment,” NPR (Dec. 17, 2019), available at: https://www.npr.org/2019/12/17/788924966/mcconnell-i-m-not-impartial-about-impeachment
 Savannah Behrmann, “McConnell: In ‘Total Coordination’ with White House for Impeachment Trial,” USA Today (Dec. 12, 2019), available at: https://www.usatoday.com/story/news/politics/2019/12/12/mcconnell-total-coordination-white-house-impeachment-trial/4416518002/
 Nina Totenberg, “How the Senate Tried Clinton In a ‘Respectable Way,’” NPR (Dec. 19, 2019), available at: https://www.npr.org/2019/12/19/789355645/how-the-senate-tried-clinton-in-a-respectable-way