The Green Papers Commentary
 

AND SO... HERE WE ARE
Notes on the eve of the Impeachment
Trial of President Trump

Tuesday, January 21, 2020

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff

As to the power of [The Senate] trying impeachments, let Mr. Mason show where the power could more properly have been placed. It is a necessary power in every free government, since even Judges of the Supreme Court of Judicature themselves may require a trial, and other public officers might have too much influence before an ordinary and common Court. And what probability is there that such a Court acting in so solemn a manner, should abuse its power (especially as it is wisely provided that their sentences shall extend only to removal from office and incapacitation) more than any other Court? The argument as to the possible abuse of power, as I have before suggested, will reach all delegation of power whatever, since all power may be abused where fallible beings are to execute it; but we must take as much caution as we can, being careful at the same time not to be too wise to do any thing at all--
JAMES IREDELL (later one of the first Associate Justices of the Supreme Court of the United States), writing as 'MARCUS' in his Answers to George Mason [of Virginia]'s Objections to the new Constitution: published 20 February 1788


Less than a year after the date this piece is first posted, come Wednesday 20 January 2021, someone- whether current President Donald John Trump, or no- will be taking the Oath of Office as President of the United States on the West Front of the United States Capitol in Washington, DC. While that very date seems as if it is still quite a long time from now as I type this, it will most certainly be upon us all soon enough.

The 2020 Presidential Election cycle is now the sixth being covered by The Green Papers since it first went online more than two decades ago, and (as I have done in the past every four years about this time), with the Iowa Caucuses and New Hampshire Presidential Primaries fast approaching, I would more normally soon be writing about what to watch for in those events and what these, in turn, might portend for whichever Major Party (where not both) was in the midst of a competitive contest for that Party's presidential nomination, along with which presidential contenders might more likely find themselves in whatever either enviable, or desperate, situation they may thereafter, going forward (or, perhaps, not!). I will yet do so in less than two weeks, of course, but another political event of moment- the Impeachment of President Trump by the U.S. House of Representatives last month, now to be followed by the impending Trial on the Articles of Impeachment in the United States Senate- compels me to write this particular piece now.


The power of Impeachment is given by this Constitution, to bring great offenders to punishment. It is calculated to bring them to punishment for crimes which it is not easy to describe, but which everyone must be convinced is a high crime and misdemeanor against the government. This power is lodged in those who represent the great body of the People, because the occasion for its exercise will arise from great injury to the community, and the objects of it may be such as cannot be easily reached by an ordinary tribunal. The trial belongs to the Senate, lest an inferior tribunal should be too much awed by so powerful an accuser.--
JAMES IREDELL in his capacity as Floor Manager of the pro-Ratification faction in the NORTH CAROLINA Convention on Ratification of the Constitution of the United States: 28 July 1788


As I have noted on this website before (as in the subhead to my previous Commentary for this website), this is the third Impeachment Inquiry of a President of the United States in my own lifetime.

The first was the near-Impeachment of President Richard Nixon as a result of the 'Watergate' scandal, during which I myself came of age: I turned 18 in March 1974 and, come the following June, I was voting- for the first time ever- in the Primaries nominating candidates for elective office in my own State of New Jersey (in fact, I stopped by the polling place on my way home from Final Exams towards the end of my senior year in high school, for I would be graduating a little over a week thereafter); at the time, Nixon was still in office and preparing for what would be his last overseas trip as President (to the Middle East via Austria during the same week I would be receiving my high school diploma). But, by the time I matriculated at Boston University come that Fall, President Nixon had already resigned and was no longer in the White House (in fact, so recently installed President Gerald Ford issued his then-controversial blanket pardon of Nixon during the first full weekend I was in college).

The second was the Impeachment of President Bill Clinton (by a vote of 228 to 206 in the U.S. House of Representatives, more or less on party lines [although 5 members of each Major Party crossed the Aisle on either side], on the lead Article of Impeachment) on 19 December 1998. At the time, The Green Papers was still (albeit less than a year) in the future and, as a result, I did not have to at all publicly (through Commentaries readable on the Internet) deal with this Impeachment in real time (as I now have to do with the one currently underway). Nonetheless, I will here look back upon my own then-reactions to the events leading up to Clinton's Impeachment by the House, as well as to the Trial in the Senate engendered by that Impeachment itself, as these might prove most instructive to the reader regarding what I might write below concerning the Articles of Impeachment against President Donald Trump currently on the Senate Calendar.

The impetus towards the Impeachment of President Clinton went back to nearly a year before the House so voted to impeach him: on 17 January 1998, Clinton travelled a short distance from the White House to testify under Oath in a deposition, before a Federal judge, that was part of the process within a civil suit brought against him by Paula Jones who was suing the President for sexual harassment. At issue was whether or not Clinton had had a sexual dalliance with a White House intern, Monica Lewinsky (although this affair was, on that date, only just about to become publicly known); it should fairly be noted that Ms. Lewinsky was age 22 and 23 during the purported period (a little over a year) during which said relationship was said to have taken place: also, it has to be said, the truth (or lack thereof) of this relationship was deemed by the Court to be germane to the case at bar, which is precisely why it was at issue at this time.

The story of what came to be called the 'Lewinsky affair' would break during the week immediately following the President's deposition: tape recordings secretly made by Linda Tripp, who had befriended Ms. Lewinsky despite being twice her age- tapes in which Ms. Lewinsky spoke of her affair with President Clinton- came to attention of both the Press and Independent Counsel Kenneth Starr (who had originally been appointed, back in 1994, to investigate the 'Whitewater affair' involving a land deal in the President's native Arkansas: his prosecutorial interest in the Clinton-Lewinsky matter was ostensibly tied to this earlier, initial investigation). For his own part, President Clinton defended himself against the charge with a famous- perhaps, to some minds, infamous- appearance in the White House (with both the First Lady, Hillary Rodham Clinton, and Vice President Al Gore by his side) on 26 January 1998 in which he stated "I want to say one thing to the American People- I want you to listen to me, I'm going to say this again", before pointedly (while repeatedly, as well as rhythmically, pointing his finger forward for emphasis) "I did not have sexual relations with that woman, Miss Lewinsky".

In the main, however, President Clinton's problems would emerge from, and revolve about, the very definition of the word 'sex' (as in "sexual relations"): for it would later emerge that Clinton had told the court, during his deposition, that he had not had a sexual relationship with Ms. Lewinsky, and continued to insist that he had not (again under Oath) even after the Federal judge in the case- Susan Webber Wright- had effectively taken Judicial Notice of a definition of 'sex' that included all sorts of sexual activity short of sexual intercourse. Things only got more sticky for the President when he was deposed on video (at the behest of a Grand Jury empaneled by Starr) on 17 August 1998, followed that same evening by a televised address to the Nation in which Clinton admitted that he "did have a relationship with Miss Lewinsky that was inappropriate: in fact, it was wrong. It constituted a critical lapse in judgment and a personal failure on my part for which I am solely and completely responsible"; nonetheless, he insisted that "this matter" was "nobody's business"-- "Even Presidents have private lives", he declaimed.

A little over a month later, however, the videotape of this later deposition was publicly released (about a week after publication of the 'Starr Report', which included snippets of this same 17 August testimony within its covers) and this showed the President- despite his latest admission of the affair in public- still hung up on the definition of the term 'sex' in private: "We have seen this... investigation come down to parsing of the definition" of that word, he complained. While admitting to "inappropriate intimate contact" with Ms. Lewinsky short of intercourse, Clinton argued that "I think it's clear what inappropriately intimate is" and, further, he insisted that 'sex' being intercourse alone was "the definition most ordinary Americans would give it" (thereby, so he claimed, his earlier insistence that he did not have sex with Ms. Lewinsky was, in fact, true). For my own part, I begged to differ (as I still do) with Mr. Clinton's definition: to my mind, then as now, 'sex' involves- at the very least- the touching of another person on any part of their body one cannot see while he or she is wearing their own ordinary, everyday clothing (including touching while still clothed!). Whether or not my own definition of 'sex' matches up with what Clinton himself called a "common understanding" of same among my fellow Americans (in either 1999, or now in 2020), I care not; in any event, it was the definition I brought, back then, to my own understanding and reactions to these events.

Perhaps the lowest moment of the whole thing came when, asked if a statement (one made by one of the President's lawyers on his behalf during the earlier deposition) that 'there was no sex, of any kind, in any manner, shape or form, with President Clinton' on the part of Monica Lewinsky was 'an utterly false statement', Clinton infamously replied: "It depends on what the meaning of the word 'is' is: if 'is' means 'is, and never has been', that's one thing; if it means 'there is none', that was a completely true statement" (thus, it appeared as if the President was here arguing that, since he was no longer involved with Ms. Lewinsky at the time of the earlier deposition, the statement made by his attorney was actually true): President Clinton's own parsing of the verb 'to be' ended up becoming most widely quoted in the public sphere, to his own detriment, if not his own personal embarrassment.

I take no joy in my having reviewed and, as a result, my now recounting any and all of this, by the way: I here only outline the barest minimum of the events leading up to Bill Clinton's Impeachment in order to make most clear my own take on it, as well as also make most clear the basis of my comparisons of the Clinton Impeachment to that of President Trump which will be made below in this piece. Personally, I did not care then (nor do I care now) what people- including Presidents of the United States (whether I support them or not; whether or not I voted for them)- might do in the sexual realm (so long, of course, as the relationship- whatever it might entail- is consensual, and involves those who can legally so consent [a concept that itself will come up again shortly in this piece]; if President Clinton's dalliance with Ms. Lewinsky produced a dicey marital issue for Mrs. Clinton, that was- as it yet remains- solely between 'Bill and Hil'!).

But it is a whole 'nuther matter for a President of the United States to engage in unlawful conduct while in office and, as I saw it, President Clinton had, in fact, committed Perjury (a Federal crime) during his earlier, 17 January 1998, deposition (regardless of what the definition of the word 'is' might be!); I thought so then, and still think so now (more than two decades later). Early in George Washington's Presidency, when there was still serious debate and discussion over just what the title of the President should be (that is: how he was to be formally addressed), one of the more high-falutin' proposals was "His Excellency, the President of the United States of America, and the Guarantor and Protector of the Liberties of the Same"; yet, that is one of the President's many 'hats' he wears while carrying out the Powers and Duties of his high Office, and the Nation can ill afford the 'Guarantor and Protector' of the American People's Liberties to be lying under Oath in a judicial, or administrative, proceeding!

Thus, I believed, at the time, that President Clinton should be impeached by the House (as he, indeed, was) on grounds that Perjury committed before, as well as within, the Federal System he himself had (twice, no less, by then!) sworn to "preserve, protect, and defend" was not only unconscionable, as well as indefensible, but also a "high Crime" per Article II, Section 4 of the Federal Constitution, precisely because it was a President that had done so. However, having said this, the manner in which the Impeachment itself, along with the ensuing Trial in the Senate, would progress made it altogether difficult- and, ultimately, impossible- for me to thereafter support Bill Clinton's Removal from Office.

Perhaps the political winds of that time could not help but produce, as well as energize, the "clown car" into which the Republican Party (under the Speakership Newt Gingrich had, in the immediate wake of a Midterm Election that had not at all produced the political gains for the Grand Old Party impeaching Bill Clinton had once seemingly promised, already announced he would soon be vacating) had so willingly climbed following the publication of the 'Starr Report' and the concomitant release of the videotape of President Clinton's second deposition; yet "political winds" themselves provide no real excuse. In any event, the U.S. House of Representatives of the 105th Congress was to be presented with four potential Articles of Impeachment by its Judiciary Committee on 11 and 12 December 1998; time was running out on that Congress, as the new 106th Congress (of which members of the House had already been elected the month before) would be taking their seats less than a month thereafter: thus, any Articles of Impeachment sent on to the Senate would have to be approved rather quickly before the outgoing Congress adjourned sine die.

The first such Article charged President Clinton with giving "perjurious, false and misleading testimony" to the Grand Jury on 17 August; while the second specifically charged him with "willfully provid[ing] perjurious, false and misleading testimony in response to questions deemed relevant by a Federal judge" (this referring to what had transpired during the President's first deposition back on 17 January). A third proposed Article charged Clinton with Obstruction of Justice (through "a course of conduct or scheme designed to delay, impede, cover up and conceal the existence of evidence and testimony"), and a fourth charged the President with Abuse of Power in relation to furthering the Obstruction noted in the third.

Of these four, the strongest- by far- was the second (that involving Perjury during President Clinton's 17 January deposition): it was, in fact, the only one that I myself could wholeheartedly support. The other proposed Articles were contingent upon this second one, for the "false and misleading testimony" on 17 August (the subject of the first proposed Article) was only so in relationship to that of 17 January (hence the President's "It depends on what the meaning of the word 'is' is" which had been his attempt to assert the truthfulness of something that had occurred during his first deposition in January), while the remaining two proposals were themselves only 'live' in relation thereto.

The problem was that this second proposed Article was voted down by the House, 229 to 205 (28 Republicans crossing the Aisle to vote against it; 5 Democrats voting for it); thereby, the first proposed Article (adopted, as already noted above, by a vote of 228 to 206) was left dangling (at the time, I seriously considered that, as there was actual video of President Clinton's later deposition in the public sphere, impeaching him only in relation to that deposition was thought, by those who would manage his Impeachment at Trial, the more useful [as there had been no audio or video of his 17 January deposition]; however, from a purely constitutional perspective, there could be [if only in terms of the Impeachment process itself] no actionable Perjury by the President about earlier Perjury that would not even be presented to the Senate!). The proposed Article re: Obstruction was also adopted by vote of 221 to 212 (12 Republicans crossing the Aisle here to vote 'No'), but the fourth Article was voted down 285 to 148 (with 81 Republicans breaking ranks here). The very day of these votes on the Floor of the House had already been made the more bizarre with the announcement, by Congressman Bob Livingston of Louisiana (widely viewed as Gingrich's likely successor as Speaker), that he would be resigning due to revelations of his own extramarital affairs made public during the preceding week (Livingston attempted to tie his own sudden political demise into the whole Impeachment issue by calling on President Clinton to resign as well, obviously to no avail).

Nonetheless, come the New Year, it was on to the United States Senate for the Trial of President William Jefferson Clinton upon Impeachment:

The Trial formally began- with the swearing in of Chief Justice William Rehnquist as presiding officer, followed by the swearing in of the Senators as a Court of Impeachment- on Thursday 7 January 1999 (and, in an interesting answer to a Trivia Question [if nothing else] then-newly sworn in Senator [and former Congressman] Chuck Schumer of New York, thereby, became the first and only person ever to vote in the House on Articles of Impeachment of a President and thereafter try that same Impeachment in the Senate) and, soon enough (once the Trial got underway in earnest on Thursday 14 January), became Farce. Despite the House Managers of Impeachment initially prosecuting Clinton for what they called "egregious and criminal conduct", there was all too much truth in what one official Defender of the President would later say on the Floor of the Senate when he declaimed: "This trial is all about sex!"

And this truth became abundantly clear when, after the initial round of House Managers and official Defenders formally stating their respective cases [pro, and con, Removal of President Clinton from Office] before the Senate, a Federal judge outside these proceedings had ruled that Monica Lewinsky had to testify in the Impeachment Trial itself: the House Managers jumped at the chance, preliminarily interviewing Ms. Lewinsky on Sunday 24 January before questioning her under Oath (and on videotape) on Monday 1 February. This videotape was shown to the Senate (the Senate had decided not to hear 'live' witnesses) near the end of the Trial, on Saturday 6 February, and its use in this regard merely showed that the Impeachment Trial of President Clinton had, by then, most fully devolved into a B-grade, warmed-over version of Lolita.

In essence, the Trial had become an attempt to paint Bill Clinton as the quintessential 'dirty old man' preying upon a young 'girl' (perhaps one that might appear to be too young!), even though- at the time of their affair- Ms. Lewinsky was not only over the Age of Consent, but also above the Age of Majority, and thereby a young woman as responsible for her own actions as was he: in this, the Media- although, then as now, so often portrayed as the mortal enemy of all things conservative and/or Republican- was most complicit (during my recent researching for this very Commentary, for instance, I came across many a contemporaneous newspaper story referring to, say, Ms. Lewinsky's "child-like hand" raised to take the Oath, or her "girlish voice" as she testified). Given such a thing, I myself could not at all be convinced to support actual Removal of President Clinton from office, an act that would only have served to make the whole process even more farcical than it already was.

All in all, and if nothing else, the actual Senate vote on Impeachment merely reflected the partisan divide within the America of the final years of the 20th Century: Bill Clinton was, in fact, not removed from office come the votes in the Senate on Friday 12 February 1999; and not even a majority of the Republican-majority Senate could be mustered in favor of same, let alone the "two-thirds of the members present" required by Article I, Section 3, clause 6 of the Federal Constitution for Removal (on the Article of Impeachment about Perjury in Clinton's 17 August 1998 deposition, the Senate voted 45-55 against; on the Article regarding Obstruction of Justice, the Senate flat-out tied, 50-50 [10, and 5, Republican Senators crossing the Aisle, respectively]).

In the end, I had actually gotten what I wanted as an American citizen and voter: President Clinton had gotten what he deserved-- impeachment by the House (thus, something of an "asterisk" attached to his two terms in the White House), but without his having been removed from office by the Senate. I trust that the, oh-- three, four-- perhaps as many as five of my fellow Americans who, at the time, might have actually agreed with me proved as happy as was I about this result.


An impeachable high crime or misdemeanor is one, in its nature or consequences, subversive of some fundamental or essential principle of government, or highly prejudicial to the public interest, and this may consist of a violation of the Constitution, of law, of an official oath, or duty, by an act committed or omitted, or without violating a positive law, by the abuse of discretionary powers from improper motives, or for any improper purpose.--
Language drafted principally by Congressmen JOHN A. BINGHAM [Union Republican] of OHIO (Member of the House Reconstruction Committee) and WILLIAM LAWRENCE [Union Republican] of OHIO (Member of the House Judiciary Committee), as presented before the United States Senate by Congressman RODERICK R. BUTLER [Republican] of Tennessee in his capacity as House Manager of the Impeachment of President Andrew Johnson (on 30 March 1868)


Inevitably, comparisons between the Clinton Impeachment now 21 years ago and that of President Trump today are being, and will continue to be, made; and, granted, there are many similarities-- for instance: the evidentiary partisan divide, and the fact that the Trial in the Senate will be taking place during roughly the same part of the Calendar Year. But there are significant differences between the two which might well render many an apparent similarity into but an analogue, where not even- in at least a few cases- a nullity.

First of all, there is the timing within the four-year course of a Presidential Administration: Bill Clinton's Impeachment (like that which would have befallen Richard Nixon, had he not resigned) took place during his second term, at which time Clinton (again, like Nixon) was already barred from seeking re-election to the Presidency because of the two-term limit imposed by the 22nd Amendment to the Federal Constitution; on the other hand, President Trump's Impeachment Trial is taking place virtually on the eve of (and could, indeed, may well still be going on during) the upcoming Iowa and New Hampshire delegate selection events which kick off the campaigns for the presidential nominations of both Major Parties: besides the fact that a number of Senators seeking the Democratic Party presidential nomination will have to be attending this Trial, instead of being out on the hustings, the President so impeached is himself a candidate for re-election (as he is still in only his first term of office)-- a situtation most unprecedented in American History, and one well fraught with potential political ramifications!

Second of all, there is the respective attitudes of the Presidents involved: on the same day the House Judiciary Committee voted the first three of the four Articles of Impeachment proposed against Bill Clinton (this being 11 December 1998), the President strode out to the White House Rose Garden and stated "These past months have been a tortuous process of coming to terms with what I did. I understand that Accountability demands consequences, and I'm prepared to accept them"; of course, Clinton's belated act of contrition was certainly not accepted by many of those who disliked his policies as much as they might disdain his behavior (and it can be fairly argued that Clinton had, by then, already undermined himself when the videotape of his 17 August 1998 deposition belied the remorseful tone of his nationally televised apology delivered later that same day: 'sole and complete responsibility' for "a critical lapse in judgment and a personal failure on my part" expressed in the latter conflicting with a rather arcane hair-splitting over "what the meaning of the word 'is' is" during the former)...

nonetheless, President Clinton at least attempted to be contrite (if only publicly)- he tried to (if only much too late) say, in effect, 'Yeah, I know I screwed up'; in contrast, President Trump is far from such a thing right now. Here putting aside any illegality, or at least utter lack of ethics, pressuring President Zelensky of Ukraine to announce a criminal investigation into the son of former Vice-President Joe Biden was (and is) simply 14-carat STUPID (especially in the wake of the Trump Administration then having only so recently dodged the 'bullet' of the Mueller Report on Russia!), and certainly no less stupid than President Clinton fooling around with a White House intern! (By the way, earlier in this piece I had written that I personally do not care what even a President of the United States might do in the sexual realm, so long as it is legally consensual: this does not mean, however, that I think that whatever a President- or, for that matter, anyone else- might do in this regard is necessarily smart!). Yet, President Trump so obviously continues to think (and, in addition, so publicly embraces) being so stupid as, somehow, well--- "perfect"!

If there is, then, the strongest similarity between the Impeachments of President Clinton and President Trump, it starts with addressing the question of whether or not an act by a President that is, at base, so stupid might also, depending on the context of all that might flow from- or be related to- said act, also be potentially impeachable; that is: does the act itself and/or all that is done behind the scenes to try and mitigate it without, at the same time, publicly acknowledging it (along with all related subsequent activity thereto) until, and unless, forced to by events beyond the Administration's control rise to the level of a "high Crime [or] misdemeanor" per Article II, Section 4 of the U.S. Constitution?

At this point, with the Trial in the Senate of Donald Trump upon Impeachment only just about to get underway in earnest, it is not my place to here tell the reader just what to think on this point, let alone how he or she should answer the above question. I have already, on this website, provided a summary of what those who drafted the Constitution of the United States met in Convention in Philadelphia thought about Impeachment during their longest debate on the subject on 20 July 1787 (and the reader interested in reviewing this summary can, of course, do so via the link provided); a fair analysis of that discussion brings forth the very issues being confronted right now, as I type this, by the American People, as well as their representatives in both houses of Congress: fear of a President "betray[ing] his trust to foreign Powers" (as James Madison, destined to one day be a President of the United States himself, put it) over and against a concomitant fear that Impeachment, in and of itself, might do damage to what Rufus King (a future Senator) called "the vigor of the Executive... a great security for public liberties", these both further mingled with a fear that, if nothing can be done to call a President of the United States to account between quadrennial Elections, "the mischief would go on" (to here quote Gouvernour Morris [another future Senator], whose mind regarding Impeachment [which he was initially against] was actually, by his own admission, changed by that very debate and discussion).


The great objects to be attained in the selection of a tribunal for the trial of impeachments, are impartiality, integrity, intelligence, and independence. If either of these qualities are wanting, the trial is essentially defective. To insure impartiality, the body must be, in some degree, removed from popular power and passions, from the influence of sectional prejudices, and from the still more dangerous influence of party spirit. To secure integrity, there must be a lofty sense of duty, and a deep responsibility to God, as well as to future ages. To secure intelligence, there must be age, experience, and high intellectual powers and attainments. To secure independence, there must be numbers, as well as talents, and a confidence, resulting from permanency of place, dignity of station, and consciousness of patriotism. The Senate, from its very organization, must be presumed to possess all these qualities in a high degree, and certainly in a degree not surpassed by any other political body in the country.--
U.S. Supreme Court Associate Justice JOSEPH STORY, in his A Familiar Exposition of the Constitution of the United States [1840]


In my Commentary of this past 5 October, I noted the following:

Generally speaking, Impeachment in the House is the legislative equivalent of Indictment handed up by a Grand Jury in a criminal case to be dealt with in the Judiciary; meanwhile, the Senators- when constituted as a 'court of Impeachment' and, thereby, considering whether or not to remove a person so impeached from office- function, more or less, as a legislative equivalent of a Petit Jury hearing (in order to thereafter render a fair verdict of either guilt or acquittal in) a criminal case at trial.

Additionally, I then went on to acknowledge that [h]owever, this analogy might well be stretched too far, after which I noted how, in many ways, the House of Representatives was not entirely like a Grand Jury in a criminal proceeding (which I concentrated on at the time I was writing this because the House had not yet formally decided whether or not to impeach President Trump); I did not, however, at all address the ways that analogizing the Senate to a Petit Jury might also "be stretched too far"... it is, obviously, now time for me to do so:

At one point during the Impeachment Trial of President Clinton in the Senate, then-Senator Tom Harkin (Democrat of Iowa) rose to object to the charactarization of the Senators so hearing it as "jurors" by Congressman Bob Barr of Georgia, one of the House Managers for Clinton's Impeachment then presenting part of the case against the President. Chief Justice William Rehnquist, presiding over that Trial, agreed and admonished all by ruling that "[t]he Senator from Iowa's objection is well taken. The Senate is not simply a jury; it is a Court in this case. Therefore, counsel should refrain from referring to Senators as jurors". Nonetheless, the United States Senate- in its capacity as a constitutional Court of Impeachment (of any Federal civil officer, not just the President)- is as much (and no less) a "petit Jury" as each Senator also, at one and the same time, sits as a "judge" in the same case.

Perhaps, then, my earlier (and above-quoted) statement that the Senators- when constituted as a 'court of Impeachment' and, thereby, considering whether or not to remove a person so impeached from office- function, more or less, as a legislative equivalent of a Petit Jury should be viewed (parsed?) as follows: first of all, it should be read primarily in relationship to the earlier portion of my comment where I already noted that Impeachment in the House is the legislative equivalent of Indictment handed up by a Grand Jury-- that is: as the House doing the impeaching is, effectively, the 'Grand Jury', the Senate is (in relation thereto) the 'petit Jury'...

secondly, there is my 'more or less' qualifier within my saying that the Senators, when so sitting together as a Court of Impeachment, function, more or less, as a legislative equivalent of a Petit Jury, implying that there is another function they perform (in this case, as "judges"). Unlike in a case before the Judiciary, the presiding judge- here, the Chief Justice of the United States (as is constitutionally required- by Article I, Section 3, clause 6 of the Federal Constitution in cases of Impeachment against the President)- merely guides the Senate, as the Senate itself is the Court here. Any ruling by the Chief Justice can be overruled by majority vote of the Senate, as they are no less the finder of Law than he (although the Senators alone are the finders of Fact).

The best analogy of the Senate sitting as a Court of Impeachment to a judicial proceeding here might then be to a Bench Trial, in which a criminal defendant has waived his or her right to a Jury Trial (after all, Rights and Liberties can always be waived by persons to whom they accrue) and the trial judge thereafter acts as finder of Fact, as well as of Law. In such a case, my "more or less" becomes quite literal: for there will, of course, be times when the Senate will be listening to what is presented to them as if they were jurors; at other times, however, they will, of necessity, act as finders of Law as the occasion might arise (for instance, when the Senate wrestles with the issue of whether or not there will be witnesses called before it [and, if so, how shall these witnesses appear- 'live' on the Senate Floor? or 'live' via video? or, as was the case with Monica Lewinsky back in 1999, on prerecorded video?], wherein each Senator will be acting as a "judge" determining application of Rules of Evidence, and not then as a "juror" hearing each side present its case).

Will the United States Senate of the 116th Congress rise to Justice Story's notion (as quoted above) that it, as a body, engage in impartiality, integrity, intelligence, and independence during this process? Or will it, instead, only be shown that- lacking one or more of these- the trial is essentially defective? This, of course, remains to be seen. In the case of Bill Clinton's Impeachment, the Trial on Impeachment was rendered "defective" principally through the conduct of the House Managers prosecuting it: for them, it seemed, the 'sexier' (pun intended) story was what the President and Ms. Lewinsky had done during their private moments; making Perjury appear to have been as bad, if not worse (especially considering that the intial Perjury- that during Clinton's 17 January 1998 deposition- was not even on the Senate "docket"!) was thereby made all the harder...

the House Republicans' zeal to sell Clinton's misbehavior to the public, therefore, merely trumped the two Articles of Impeachment themselves: while most of the public, even those not exactly enamored of either Bill Clinton or the Democrats (my own conservative Republican Dad thought, at the time, the whole Impeachment process of 1998-1999 a complete waste of time and money), had already been turned off by much of the more salacious language within the 'Starr Report' issued more than a few months earlier. In the main, the Republican House Managers then presenting their case against the President themselves struggled with definitions of the word 'sex' no less than had Clinton himself during the previous year (albeit, obviously, for different reasons); and the fact that at least some Republican Senators later crossed the Aisle to vote against at least one, if not both, of the Articles of Impeachment against President Clinton is alone most telling!

In the end, then, the United States Senate of the 106th Congress sitting as a Court of Impeachment of a President of the United States back in 1999 did act at least independently (here leaving the relative amounts of impartiality, integrity, and intelligence therein to the Historians). Meanwhile, the United States Senate of the current 116th Congress of the United States, as I type this, only now truly faces its own such test.


I will not be tempted to follow learned Senators on the question whether this is a Senate or a Court. That question, to my mind, is simply one of language. Our powers at this moment are under the Constitution of the United States, nor can we add to them a tittle by calling ourselves a Court, or calling ourselves a Senate. They are there in the Constitution; search its text, and you will find them. The Constitution has not given us a name, but it has given us powers, and these we are now to exercise. No matter for the name; the rose under any other name has all those qualities with which it was found.--
Senator CHARLES SUMNER [Republican] of Massachusetts, on the Opening Day of the Trial on Impeachment of President Andrew Johnson (5 March 1868) during debate on a Point of Order as to whether Senator Benjamin Wade [Republican of Ohio], then-Senate President pro Tempore, should be permitted to be sworn in as a member of the Senate sitting as a Court of Impeachment (NOTE: As the Vice-Presidency had been vacant since the assassination of President Abraham Lincoln in 1865, Senator Wade [under the provisions of the Presidential Succession Act then in force (1 Stat. 239, Sec. 9 [1792])] would have, as President pro Tempore of the Senate, succeeded to the Presidency had President Johnson been convicted by 2/3 vote of the Senate in this Trial and, thereby, removed from office)

 


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