November 3, 2019
You have, no doubt, heard people describe the Senate’s role in the impeachment process as that of a jury. That analogy is flawed on a number of levels.
In ordinary trials, jury selection is designed to ensure that jurors don’t have preconceived notions of the defendant’s guilt or innocence. In an ordinary trial, jurors are disqualified if they already are familiar with the facts of the case. If that standard applied to an impeachment trial most, if not all, Senators on both sides of the aisle would be disqualified.
In an ordinary trial, jurors are disqualified if they have expressed any opinion about it. Many Republican Senators have publicly discussed the impeachment process so far, including opining on Trump’s culpability. But it goes beyond that even. Republicans are frantically seeking a strategy and talking points to defend Trump. According to the Washington Post, some Republican Senators met to discuss how best to rally to the President’s defense if he is impeached, including discussing whether to acknowledge that there was a quid pro quo in their efforts to mount a defense.
Senate Majority Leader Mitch McConnell, and the campaign arm of Senate Republicans, have spent nearly $200,000 on Facebook ads criticizing the impeachment process.
Sen. Lindsey Graham authored a senate resolution condemning the house process, even thought it is the same process used in the Nixon and Clinton proceedings. Graham has made statements like “There was nothing wrong with the phone call, no quid pro quo” well ahead of hearing from all witnesses.
Individuals with an obvious conflict of interest are excluded from serving as jurors in an ordinary trial. Not so with the Senate. Most, if not all, Republican Senators up for reelection fear that voting to remove Trump would mean defeat. That is the sole reason many of them back the President despite his lawlessness. Trump has begun to funnel campaign cash to Senators facing tough reelections. In an ordinary trial this would be considered bribery and could be prosecuted. Sen. Ron Johnson (R-Wis.), and Vice President Pence (who could break a tie vote) have been heavily involved in the Ukraine saga. They have conflicts of interest that would exclude them from being a juror under the rules of an ordinary trial.
It would be better if all of the Senators let the process play out and heard all the facts before coming to a conclusion about the optimum result. Jurors are supposed to decide based on the facts and the law. “Jury nullification” (where jurors purposely ignore the law to let a defendant go free) has happened, but it’s not supposed to.
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