Changes in the Senate's rules in an impeachment trial

[T]Share on Twitter Share via email Print The polarization and political passion manifest in the politics of impeachment today was anticipated by the Constitution’s designers.

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The design problem for America’s constitutional architects was to invent an institution that could mitigate this problem.

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[Alexander] Hamilton reported that the [Supreme] Court lacked the political fortitude to weather the storm that would attend any verdict: the Court’s legitimacy as a final tribunal for ordinary legal disputes would be undermined if it took on the issue of high politics as well.

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The Senate, on the other hand, was a more promising venue because it was a political body, but not as tightly tethered to factionalism and political passion as the House.

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To raise the Senate up to the demands of high politics, the Framers decided that the Senate would need to recompose itself into a new institution—an impeachment court.

This transformation was serious enough that senators would have to take a new oath of office.

According to Article I, section 3, clause 6 of the Constitution, senators, when sitting on a trial of impeachment, “shall be on Oath or Affirmation.”

When they are elected to the Senate, all senators swear a general Oath to uphold the Constitution. But the Oath taken in an impeachment trial is different. It is a juror’s oath and a judge’s oath—not a legislator’s oath. Rule XXV of the Senate Rules in Impeachment Trials provides the text: “I solemnly swear (or affirm) that in all things appertaining to the trial of ____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”For an impeachment trial of a president, the chief justice of the United States presides. He can be overruled by a majority vote of the other judges/jurors—which is to say the senators. But it is vital to remember that the Constitution asks them to remember that they are not sitting as senators, but now as judges and jurors.

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For the course of the trial the roles of Majority and Minority Leader, President Pro Tem, Committee Chairs, Whips, and so forth no longer exist. For the duration of the trial the Senate is a literally new institution with new rules, new norms, and new responsibilities.

In recent days Senator Mitch McConnell has been in conversation with the White House on how to game the trial, as if it were any other political item among the hundreds over which he has ridden herd. News reports indicate that McConnell is planning for a continuous whip of votes to determine the earliest possible time to end the trial, as if it were nothing different than debate over a budget bill.

This approach is patently anti-Constitutional and can only exacerbate the problem the Constitution was designed to mitigate. McConnell is diminishing the stature of the Senate, bringing a matter of high politics low. And it also is in literal violation of the oath McConnell and the other 99 senators will be required to take at the start of the trial.

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But whatever the verdict, more is on trial than just the president.

Our political culture is on trial.

The impeachment of Donald Trump could be a rare moment of profound civic education, and of possible civic renewal.

Or it could enhance and accelerate the decay of democratic discourse in our time.

  The Bulwark

And make a shambles of our Constitution.

...but hey, do what you want...you will anyway.