If the Public Wants Justice, Impeachment Trials Must Change

If the Public Wants Justice, Impeachment Trials Must Change

By Scott McIntyre

In full disclosure, I’m a Republican who voted for Donald Trump, and was also dismissed as a juror, in a murder trial in California, after voicing concerns over the behavior of the attorneys in court.  However, I still feel the ‘fairness’ of our criminal and civil legal system so far exceeds that of recent presidential impeachment trials, that something must be done if Americans are to have justice fully practiced in future impeachments.

On page 8 of a document, published on govinfo; a service of the United States Government Publishing Office (which is a federal agency in the legislative branch); we find this “Form of oath to be administered to the Members of the Senate and the Presiding Officer sitting in the trial of impeachments.”

‘‘I solemnly swear (or affirm, as the case may be) that in all things appertaining to the trial of the impeachment of ——— ———, now pending, I will do impartial justice according to the Constitution and laws: So help me God.’’

The key words, to me, in this oath are that the Senators will do ‘impartial justice’ which is not something clearly visible in the three most recent trials of this type.

In Donald Trump’s second impeachment trial, completed earlier in the day I began composing this article, he was acquitted.  All 50 democratic senators (jurors) voted guilty and 43 of 50 Republican voted not guilty.  In his first trial, the vote along party lines was even more pronounced.  All Democratic votes went against him while only one Republican voted to convict, and that was only for one of the two articles.  And then there was Bill Clinton.

There were two articles of impeachment brought against President Clinton, a democrat, and not a single senator in his party found him guilty.  On the flip side of the aisle, 10 Republicans joined their Democratic counterparts with not guilty votes for Article One (perjury / grand jury), while the number dropped to five for Article Two (obstruction of justice).  Here’s the problem with that as I see it.

I can’t think of any explanation, for a split vote, largely along party lines, that doesn’t cast doubts on the decision.  Suppose…

1. The Evidence was Not Obvious – In a trial where the evidence does not clearly point to guilt or innocence, I would expect the final decision to include as many non-guilty votes as guilty ones from both sides.
2. The Voters Had to Protect Their Careers – We know from situations like Liz Cheney’s censure by the Wyoming Republican Party, that some people are out to get you if you’re not supporting your party’s leaders as they think you should.  While this doesn’t mean that a Democrat couldn’t have voted for President Clinton’s impeachment, or vice versa with President Trump, I have to wonder how much the ‘pressure’ may have affected their vote.  This became especially significant to me after I learned that in Democrat President Andrew Johnson’s impeachment trial, “not one of the Republican senators who voted for acquittal ever again served in an elected office.”
3. The Case Was Difficult – I’m sure the legal issues in some trials are more challenging than others to evaluate and make decisions on.  But if that were the case in any of these recent impeachments, I’d expect the votes to reflect that on the left and the right.
4. The Jurors Were Leaving Office – Two of the Republican Senators who voted guilty in Donald Trump’s second impeachment, Richard Burr and Pat Toomey, are both reported to not be seeking reelection.  If this gives them a sense of ‘freedom’ about their vote, then that casts doubts about the Senators, who are not planning on leaving, and their reasoning for making the decision they made.

But even if the issues I’ve raised didn’t exist, I still see BIG problems in our impeachment trail process.  Here is a list of things expected by jurors in our criminal court system that weren’t followed in all three impeachment trials.

• Jurors are Chosen – Attorneys for both sides get to ask questions to ensure, as much as possible, the potential juror doesn’t have biases or other issues which would make them a poor choice for the upcoming trial.  And judges can also dismiss jurors who can’t put aside their feelings and apply the law impartially – that is, without actual or implied bias.  “For example, in a case involving school teachers accused of fraudulently misrepresenting standardized test scores, any teachers in the panel will probably be excused for cause (even if those teachers swear in voir dire that they can be impartial).”  Based on that example, how can politicians be expected to be impartial in a trial of another politician.
• Attorneys May Not Communicate with Jurors – “Direct communication with jurors on a case by a party’s lawyer is prohibited” and yet we have evidence that Republican Senators met with attorneys during the latest impeachment trial.  Did the same thing happen between Democrat Senators and President’s Clinton’s attorneys?  I didn’t find evidence of such a meeting but that doesn’t mean it didn’t happen, and it certainly doesn’t make the lawyer’s behavior in this trial acceptable.
• Jurors Should Keep an Open Mind – On page 14 of a handbook published by the United States Courts, we read, “Human experience shows that once persons come to a preliminary conclusion as to a set of facts, they hesitate to change their views. Therefore, it is wise for jurors not to even attempt to make up their mind on the facts of a case until all the evidence has been presented to them, and they have been instructed on the law applicable to the case.”  That being the case, why were so many of the Senators in the latest impeachment trial attending with their minds made up?  According to this article from USA Today, published Febf 9, 40 Democrats suggested or stated, before the trial began, they would find Donald Trump guilty while 35 Republicans were on record for acquittal.

I love our country and wouldn’t want to live anywhere else, but I’m also very concerned about how ‘politics’ seems to be influencing the extremely important issue in our culture of presidential impeachment trials.  I won’t be running for office in the future nor do I have any plans to introduce a Constitutional amendment to make changes to the impeachment process.  However, I have decided to contact my state’s representatives in the House and Senate to encourage them to seek modifications in the impeachment process that will yield a more just decision for all American citizens.  I hope you’ll consider doing the same.

Update:

I have reached out to my Congressional Representatives (Senators Maria Cantwell and Patty Murray, and Congresswoman Cathy McMorris Rodgers), as I mentioned at the end of my article.  To encourage you to do the same, I wanted to share an easy way you could contact your representatives.  Just use the following links to get you started and, if my experience was normal,  you’ll find online contact forms for them. 

Senators – https://www.senate.gov/general/contact_information/senators_cfm.cfm

Representatives – https://www.house.gov/representatives

And if you have any problems, feel free to leave a comment or contact us – https://favs.news/about/contact/

Update No. 2:

As mentioned in the previous Update, I emailed my three Congressional Representatives about this issue and included a link to this article.  I’ve heard back from both U.S. Senators and, somewhat surprisingly, their responses triggered two additional articles that looked, not at the impeachment issue, but rather at the level of service I received from their responses.  You can read those articles here…

Follow-up with Senator Murray

Follow-up with Senator Cantwell