As this is written, it appears likely that President Donald J. Trump will be the subject of two articles of impeachment voted by the House of Representatives. The charges will be sent to the Senate for trial.

So, what can be expected?

Senate Majority Leader Mitch McConnell (R-Kentucky) has given us a preview: “Everything I do during this I’m coordinating with White House counsel… There’ll be no difference between the president’s position and our position as to how to handle this.” Senator Lindsey Graham (R-South Carolina), chairman of the Senate Judiciary Committee, was equally emphatic when he said in an interview on CNN that he wouldn’t “pretend to be a fair juror.” He didn’t need evidence. His goal was to “make it (the trial) die quickly … I will do everything I can to make it die quickly.”

While it is hard to take issue with McConnell and Graham’s assessment of future events, how do their prejudgments square with their duty under the Constitution?

The Framers of the Constitution saw impeachment and removal from office as an extraordinary remedy to be used to protect the Constitution from endangerment in extreme circumstances. The solemnity of the process was recognized by a subsequent Senate rule that requires senators, prior to the commencement of an impeachment trial, to take a separate oath. In that oath, senators swear “in all things appertaining to the trial of impeachment … (to) do impartial justice according to the Constitution and laws, so help you God.”

Which brings us to the question. If a senator swears to “do impartial justice” in an impeachment trial, does he break that oath by prejudging the matter and indicating the intention to act in cooperation with, if not at the direction of, the defendant, as Senator McConnell clearly inferred? Or to do all in their power to short-circuit the process as quickly as possible, evidence of guilt or innocence notwithstanding, as promised by Senator Graham?

To be fair, a similar duty of impartiality is incumbent on several senators currently hoping to oppose President Trump next November.

So, who in their right minds would expect partisans like Mitch McConnell, or Lindsey Graham, or the presidential hopefuls, to render “impartial justice” as jurors in an impeachment trial? Would you expect them to do so despite their partisan political ties favorable or unfavorable to the defendant?

How about the framers?

To those 18th Century gentlemen, honor and duty were paramount, and inextricably linked. If there were a duty, honor demanded that the duty be done – regardless of other considerations, including partisan ones.

It is said that impeachment is a political act. The Senate trial, the more consequential element of the impeachment process, however, should be anything but political. The duty imposed upon the senators, as jurors, is that the trial outcome should be based on a sober consideration of the misconduct alleged in the Articles of Impeachment and a finding of whether the allegations, if true, merit a finding of guilt. Politics has no place here, because the framers believed defense of the Constitution to be an imperative superior to political partisanship.

Anything less, in their minds, would be dishonorable.

What Senators McConnell and Graham have telegraphed is that the Senate will act based on partisan-driven considerations, and not the sufficiency or insufficiency of the facts underlying the charges, which could be determined only after an impartial assessment of the charges preferred by the House.

The course of action endorsed by the senators falls far short of what the framers intended, or expected, from their successors. It is a sad commentary on how far we, as a country, have drifted from where we began.

It is equally unfortunate that some of those charged with defending the Constitution in the present day are proving themselves to be such lesser men than those who wrote it.

 

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