Dear Sen. Schumer and the media: About those "impartial" Senate jurors and a fair trial ...

In the immortal words of Inigo Montoya, You keep using that word. I do not think it means what you think it means. Earlier today, Chuck Schumer insisted that the upcoming impeachment trial required Senators to remain “impartial” toward the question. “We want to make it that way again,” Schumer said of his fight with Mitch McConnell over the rules, and insisted that most members of his own caucus “have not come to conclusions”:

The media has spent a lot of air time venting over the supposed requirement of impartiality, especially in regard to McConnell’s own rejection of that claim. Schumer, stinging from the needling McConnell has been giving him over the Senate trial rules and threats to withhold the impeachment, called it “hypocrisy” this morning on the Senate floor:

Er … see the Inigo Montoya quote above again. Not only is McConnell correct about Democratic rage, it has been on display among Schumer’s own caucus for months now, in plain view. It seems Schumer and most of the media have slept through the Democratic debates (and not for no good reason), where several members of Schumer’s caucus have not just “come to conclusions” but are actively promoting them. In last month’s Democratic debate, all four Senate Democrats endorsed impeachment, and Elizabeth Warren pledged to push for removal — even before the articles of impeachment had been drafted:

MADDOW: Senator Warren, you have said already that you’ve seen enough to convict the president and remove him from office. You and four of your colleagues on this stage tonight who are also U.S. senators may soon have to take that vote. Will you try to convince your Republican colleagues in the Senate to vote the same way? And if so, how?

WARREN: Of course I will. And the obvious answer is to say, first, read the Mueller report, all 442 pages of it, that showed how the president tried to obstruct justice, and when Congress failed to act at that moment, and that the president felt free to break the law again and again and again. And that’s what’s happened with Ukraine.

It wasn’t just the November debate, either. In October’s presidential debate, before Adam Schiff had even held hearings, Senate Democrats on stage all endorsed impeachment as well — Warren, Sanders, Booker, Harris, and Klobuchar in that instance. There hasn’t been even a pretense among Senate Democrats of impartiality toward impeachment, as “jurors” or in any other comprehension of their role.

And yet the media barely noticed this except to credit it to the momentum against Trump in Congress, yet they jumped all over McConnell’s rather anodyne observation that the Senate is not an impartial body. As I argue in my column at The Week, they’re not meant to be an impartial body, not even on impeachment. This is a political process rather than a judicial process, and in this case the judgment they’re being asked to render is even more political than most:

The House of Representatives has the sole power of impeachment, which under any circumstances is a political judgment on whether an executive branch official has committed “treason, bribery, or other high crimes and misdemeanors” that require removal from office. That takes a simple majority vote, but removal requires conviction in the Senate by two-thirds of its members, which has to render a political judgment as to whether the House has made a convincing case for removal.

One need only look back to the impeachment of Bill Clinton to grasp this. In that case, the president had committed a clear statutory crime, perjury, in a civil sexual harassment case brought by Paula Jones. Clinton eventually admitted guilt, accepting a fine and a suspension of his license to practice law for five years. The issue in both chambers of Congress was whether that crime rose to the level of requiring removal from office, or whether its basis in personal conduct prior to his election rendered it essentially harmless to the office. The House impeached on a largely partisan vote, and the Senate declined to convict, also on a largely partisan vote, which was hardly coincidental to partiality among either the House’s “grand jurors” or the Senate’s “trial jurors.”

This impeachment involves even more political judgments, thanks to the nature of the core charge, “abuse of power.” While Democrats have discussed Trump’s conduct in terms of bribery and even treason, their article is limited by the fact that they have no direct evidence or testimony to a specific crime committed by Trump. Their case involves several witnesses who offered testimony that inferred an abuse of power in the handling of congressionally authorized lethal aid to Ukraine, but not of any statutory crime. The case for removing Trump therefore is entirely a political judgment as to what constitutes abuse of power in relation to foreign relations, as well as what rises to a level requiring removal from office.

The second article of impeachment alleging obstruction of Congress is even more tendentious and political. As law professor Jonathan Turley warned the House Judiciary Committee, the House had a duty to take their case for enforcing subpoenas to the courts in order to settle the dispute between branches. Alleging obstruction without any recourse to the judiciary and due process is “an abuse of power,” Turley warned, “an abuse of your power.” House Democrats argue that they are defending Congress’ constitutionally mandated oversight powers, but this article assumes parliamentary primacy over the executive such that any dispute necessarily violates the former’s prerogatives.

This point is especially significant in terms of politics rather than a judicial process. The House Democrat argument here is not for co-equality with the executive but supremacy over it, and supremacy over the judiciary as well. The article makes even the act of challenging a House subpoena a crime. That is an actual constitutional crisis that has to be solved politically, as their argument necessarily includes and eclipses the judiciary.

So yes, this is a political process, not a judicial process, exactly as the founders intended. The House is not a grand jury, and the Senate is not comprised of 100 jurors. If impeachment and removal was intended to be a judicial process, the founders would have assigned it to the judiciary. Instead, impeachment and removal are the sole responsibility of the legislature, the branch with the greatest accountability to the voters (and previously to the state legislatures), whose actions will be judged politically as well. That was to ensure that impeachment and removal were soberly and rarely considered only in the most extreme circumstances.

Schumer’s writing checks on an account that his own highest-profile caucus members have long ago drained. It would be nice if the media noticed this; it might even be impressive if they take notice of it in tonight’s debate, as the same caucus members will almost certainly take the opportunity to inflate Schumer’s complaints without any regard to their own earlier cheerleading for impeachment and removal.