Why pretend senators can ‘do impartial justice’?

One of the first events that would occur at a Senate trial of Donald Trump is that Supreme Court Chief Justice John Roberts would administer an oath for the senators to “do impartial justice according to the Constitution and laws” as they sit in judgment. 

If the Senate tries Trump, this oath-taking should not happen. 

Why shouldn’t senators take such an oath? Because such a trial would be for the Senate to determine whether Trump incited a mob that stormed the Capitol on Jan. 6, killed five people including a police officer and injured dozens more, occupied the Senate floor and forced Congress to evacuate. Senators were the victims of Trump’s alleged misconduct and, as such, cannot possibly “do impartial justice.” The House and its members were equal victims and they impeached Trump — but did not take an oath to be impartial before doing so. 

This in no way is a suggestion that the Senate should not hold a trial — try away. It is, however, a suggestion to alter the oath, at a minimum by removing the word “impartial,” if not revising the oath altogether. Senators swearing to be impartial helps to perpetuate a fiction that the impeachment trial of a president is something other than a political process. Additionally, in swearing to do that which few, if any, could under the circumstances, senators do a disservice to the meaning of “impartial,” as well as to oaths administered in other settings. 

To be impartial is to be free from prejudice or favoritism, while “justice” may be thought of as fairness in the way people are dealt with. Neither is a new concept. The maxim “nemo judex in causa sua” (“no one is judge in his own case”) originated over 2,000 years ago. 

The Constitution vests the Senate with the sole power to try all impeachments and requires an oath or affirmation, but is silent on the contents. In 1798, during the 5th Congress, senators crafted an oath for the nation’s first impeachment trial — of a fellow senator. Are we impartial about a work colleague? Keep in mind, at that point the Senate had only 32 members. In that trial, the Senate determined they lacked jurisdiction to try a fellow senator. That’s right, the “impartial” Senate determined that senators were not subject to impeachment. So, the oath’s use of “impartial” always has been, at best, aspirational.

That original oath has remained largely unchanged and used as a matter of custom in the 20 impeachment trials the Senate has held. To change the oath would require nothing more than the Senate informing Chief Justice Roberts.

The impeachment trial of a president is a hyper-politicized event. Senators are either members of the same political party as the president or of the opposing party. The Senate has held three impeachment trials of presidents. Each was the product of the House being controlled by a political party opposite of the president’s party. Does anyone really believe that senators are impartial at the impeachment trial of a president?

In 2019, Sen. Mitch McConnell (R-Ky.) explained that the Democratic-controlled House made a partisan political decision to impeach Trump and that “we will have a largely partisan outcome in the [Republican-controlled] Senate.” McConnell acknowledged the obvious, adding, “I’m not an impartial juror. This is a political process. There’s not anything judicial about it.”

If McConnell did not expose how devoid of meaning the oath to be impartial is, an upcoming trial would. Solemn oaths should be just that. But when senators participate in what essentially is a mass false-swearing exercise, they risk calling into question all the oaths they have taken. This includes senators’ oath of office in which they swear or affirm to support and defend the Constitution of the United States against all enemies, foreign and domestic.

The essence of impeachment is an allegation that a public official has abused or violated some public trust. In the Federalist Papers, Alexander Hamilton wrote that impeachment trials “relate chiefly to injuries done immediately to the society itself.” Impeachment calls upon senators to act as constitutionally-prescribed officers on behalf of society — our country, not a senator’s individual state or political party.

Removing the word “impartial” from the oath is one option. Revising the oath might yield language such as this: “Do you solemnly swear or affirm that in all things appertaining to the trial of the impeachment of Donald John Trump, now pending, you will consider the evidence introduced and render a just verdict based on the national interest and according to the constitution and laws?”

Attempting to focus senators on fairness and what’s best for the country may seem pollyannaish but at least it’s feasible and not a walking contradiction like the current oath’s use of “impartial.”

Senators, among others, were the victims of the attempted insurrection. Under the Constitution, our only impeachment trial option is that those same senators stand in judgment of the man accused of inciting that insurrection. Senators, as victims, won’t be impartial.

The word “impartial” in the oath is a shriveled fig leaf, quixotically trying to cover a naked political process. Let’s dispense with the fiction that senators are impartial at impeachment trials. Incoming Senate Majority Leader Chuck Schumer (D-N.Y.) should modify the oath, or at least remove the word “impartial” before conducting a trial.

Chris Jenks is an associate professor who teaches criminal law, evidence and the law of armed conflict at Dedman School of Law, SMU Dallas. Follow him on Twitter @ChrisJenks_SMU.