Chris cillizza senators to watch
8 senators to watch during the impeachment trial
02:57 - Source: CNN

Editor’s Note: Michael Zeldin, a CNN legal analyst, served as deputy independent counsel, and later as independent counsel, in the investigation into allegations that the administration of George H. W. Bush violated the privacy rights of candidate Bill Clinton in the 1992 presidential campaign. He also served as a special counsel to Robert Mueller in the Department of Justice. The opinions expressed in this commentary are those of the authors; view more opinion articles on CNN. This article has been updated to reflect the latest news.

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On Monday, Senate Majority Leader Mitch McConnell released proposed rules for the Senate’s impeachment trial of President Donald Trump. In this initial proposal, he gave House impeachment managers and Trump’s legal team only 24 hours each spread over a two-day period for opening arguments. Just before the start of the trial, however, McConnell changed the schedule so that the 24-hours would be spread over three days. This is still a notable difference from Bill Clinton’s impeachment trial, which held opening arguments over a four-day period. Notwithstanding the change, it appears that McConnell is trying to rush through an impeachment trial that he never wanted to hold in the first place. So much for basic fairness.

But anyone who expected McConnell to give the proceedings the time they deserve, especially after he announced publicly that his trial rules would be closely coordinated with the White House, would have to have been very naïve. One can only hope that the Senate will vote to change this abusive schedule.

Despite this tight timeline, the senators remain duty bound to take the trial seriously and approach it from a fair and impartial perspective – as they swore an oath to do. Likewise, Chief Justice John Roberts, as the trial’s presiding officer, should insist that the trial procedures allow for a full and fair trial. Otherwise, he will be complicit in allowing a constitutionally deficient process to proceed under his watch.

Notably, Roberts already missed a critical opportunity to set the tone for the impeachment trial. Article I, section 3, clause 6 of the Constitution provides: “The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.”

The oath provides: “I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of [Donald John Trump], now pending, I will do impartial justice according to the Constitution and laws: so help me God.”

In combination with the general oath to defend the Constitution against foreign and domestic enemies that each member takes upon being sworn in as a Senator, the oath makes explicit that in the context of an impeachment trial of the President, senators must be bound by an impartial duty to the country and the Constitution. Any and all political motivations must be put aside for them to fulfill their constitutional duties.

To this end, and notwithstanding the dual role the senators perform, Roberts should have, at the outset, conducted a voir dire – or questioned – every senator individually until he was satisfied that each can fulfill the obligations of the oath.

This was especially important given that at least two senators, McConnell and Lindsey Graham, had already declared in essence that they have no intention of honoring the oath. (McConnell said on Fox News: “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.” And Graham has stated: “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.”)

If the chief justice is not satisfied with the answers he receives from any senator, he should excuse the senator unless a majority of the Senate (acting in its “judicial role”) in a publicly recorded vote overrules his determination and provides a satisfactory explanation for its decision.

Notwithstanding McConnell’s departure from the Clinton rules and the failure by the chief justice to ensure that the senator’s oath would be adhered to, there are still important steps that should be undertaken by the chief justice and by every senator over the course of the trial.

1. Each senator should reaffirm his or her obligation to “do impartial justice” without regard to political affiliation at the outset of the evidentiary presentations. It would be a betrayal of the oath to do otherwise. While there is no way to assure this and there is a legal and political tension in a presidential impeachment trial, at a minimum, the Senate deliberations should be held in private. An impeachment trial is too serious an occasion for the political grandstanding that public deliberations will guarantee. Some have argued that the vote to convict or acquit also be held by secret ballot (as in the case of ordinary juries) to allow senators to vote without fear of retribution. Given the process McConnell has orchestrated with the White House, if a secret ballot will help the Senate honor its oath, it should be considered.

2. The chief justice should be vigilant to ensure that sound legal processes are followed. The Senate impeachment rules provide that the chief justice “may rule on all questions of evidence including, but not limited to, questions of relevancy, materiality, and redundancy.” Given the rules McConnell has proposed for this trial it is incumbent on the chief justice to play a more activist role than did Chief Justice Rehnquist in the Clinton impeachment trial in order to ensure a trial that accords with basic constitutional requirements.

3. Any and all senators who are shown not to be honoring his or her oath during the course of the trial should be removed by motion of his or her peers or the chief justice. The Federalist Papers – 85 articles and essays by Alexander Hamilton, James Madison and John Jay – were written in an effort to promote the ratification of the Constitution. In Federalist 65, Alexander Hamilton argued that “there will always be the greatest danger that the [impeachment] decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.” To mitigate this risk, the constitutional framers placed the responsibility to try impeachments in the Senate.

As Hamilton wrote: “Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation, to preserve, unawed and uninfluenced, the necessary impartiality between an individual accused, and the representatives of the people, his accusers?”

Accordingly, the oath requires that senators act impartially, uninfluenced by public opinion, without allegiance to the impeached official, or political party. Most notably, failures to honor the oath might occur outside the Senate chamber in the media appearances Senators make during the recesses. Failure to adhere to the black letter and spirit of the oath by any senator on either side of the aisle should result in recusal.

4. Any attempt to prematurely end the trial by a motion to dismiss before witnesses are called and documentary evidence is reviewed should be rejected. Given that the actions of the Senate are non-reviewable by a court, it is incumbent upon the Senate to ensure that the process is credible. This is the core obligation of the oath. In my view, nothing could do more to belittle the oath and undermine the credibility of the process (thereby denying the country the closure that an evidence-based verdict is intended to achieve) than to precipitously dismiss the charges. The American people are constitutionally owed a full and fair trial. The chief justice should so require.

5. The Senate should vote for additional witnesses and documents. The web page of the United States Senate, in discussing the Senate’s role during impeachments, states: “The Senate sits as a High of Impeachment in which senators consider evidence, hear witnesses, and vote to acquit or convict the impeached official.”

This requires that all relevant witness and documentary evidence that bears on the guilt or innocence of the impeached officeholder be brought forth and evaluated. This occurs every day in criminal trials across America, and has been the norm in every other impeachment trial conducted by the Senate. The oath requires nothing less.

Some have argued that the Senate should not fill in the evidence that the House did not bring forth to the Senate. Republican Sen. James Lankford noted that it is the House of Representatives’ – not the Senate’s – responsibility to gather evidence for impeachment and present the case.

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    While the initial responsibility for evidence-gathering falls under the House’s domain, the argument that the Senate should not consider newly available evidence confuses a trial with an appeal. Trials are where evidence is heard irrespective of when the evidence was discovered. Appeals evaluate verdicts based on the evidence adduced at trial. The Senate sits as a trial body, not a court of appeals. No criminal court would tolerate a situation where newly discovered, relevant evidence acquired post-indictment was not admitted into evidence solely because it was acquired after the grand jury indicted. The Senate shouldn’t either.

    As Rehnquist said during the Clinton impeachment: “The Senate is not simply a jury; it is a court in this case.”

    Make no mistake. We are at a tipping point. Our constitutional system of checks and balances is at stake. The power to protect that system from unbounded assertions of executive power resides in the hands of 100 senators guided by the chief justice. Each senator, as a constitutional steward, has the power to ensure that her or his name will be recorded by posterity as one who proved him or herself as equal to the trust expected by the constitutional framers. History will record those who dishonor the oath as unequal to that grand trust. And that will be their legacy.