Now that the House has done its part, the articles of impeachment will be sent to the senate for the trial. Fortunately for Trump, two powerful Republican senators have made it clear that the matter is already settled.
Lindsay Graham has said that he will do all he can to kill the impeachment, saying that “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” Mitch McConnell has gone even further, asserting that “Everything I do during this, I’m coordinating with White House counsel. 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.” Other Republicans, such as Ted Cruz, have made their view of the matter clear, but have generally not gone as far as Graham or McConnell.
One problem with these statements is that they seem to pre-violate the oath that the Republican senators are constitutionally required to take during the trial. The specific wording for the trial of Trump will be: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’
Graham and McConnell have already committed to their verdict and McConnell has committed himself to, in effect, becoming part of Trump’s defense team. While the impeachment trial is not a criminal trial, this is analogous to having a juror announce that they are coordinating with the criminal defendant’s legal team and that they already intend to vote not guilty.
It can, of course, be pointed out that this is not a criminal trial and is not governed by the same rules. It is, defenders of McConnell might point out, a political event in the form of a trial and thus subject to the basic rule of pragmatic party politics: do whatever it takes for your party to win.
One obvious problem with this interpretation is the oath noted above—the senators swear to God that they “will do impartial justice according to the Constitution and laws.” That is, they are swearing to set aside party loyalty and follow the Constitution and laws. This would seem to obligate them, at the very least, to not become part of Trump’s defense team and to wait for the trial to render an absolute verdict. Unfortunately, this oath seems to have no teeth—there are no consequences for breaking it (at least in this life, depending on how God looks at oath breakers) other than whatever political ramifications that might arise.
McConnell and Graham could, of course, have publicly said they will be conducting a fair and impartial trial and then re-assure Trump in secret. But this was not an option. While Trump is quick to hurl loyalists under the bus, he demands absolute public loyalty and punishes those who refuse to offer it. As such, McConnell and Graham are being clever political players—they want to keep Trump’s base behind them and the way to do that is to stay in Trump’s good graces by defending him and praising him. Graham has learned to play this role very well and one wonders what his friend John McCain would think of this. Or the Graham that loathed Trump.
As for why the Republicans should take the oath seriously, the Constitution obligates them to do so. It is also the morally right thing to do, even if they believe Trump is innocent. After all, an impartial trial should get to the truth of the matter. There are also pragmatic reasons to hold an impartial trial: if the call was perfect and Trump did nothing wrong, then an impartial trial would embarrass the Democrats and damage them politically. The most plausible reason to not have an impartial trial and not call new witnesses is to minimize the damage to a guilty Trump.
At this point, someone might say “what about the Democrats? Haven’t some of them said that Trump is guilty? Are they not also pre-violating their oath?” While the “what about” does not get the Republicans off the hook, it does raise a reasonable point: the Democrats in the senate must also take the oath and they should take it seriously. This means being willing to decide that Trump is not guilty if the evidence warrants doing so. As such, the Democrats must be willing to, well, do what they want to do: have a real trial with key witnesses (who refused to testify before the House) being called.
While it is in poor form for Democrats and Republicans to announce their decision before the trial, they can comment on the House proceedings and express a view on what that evidence shows at this point. However, this does not free them from taking the oath seriously.
I would take the same position if a Democrat was being impeached and Democrats rushed to pre-violate the oath; so be sure to save a copy of this essay in case that happens.