I had jury duty the other day. We were asked, on a written form, whether we had any biases that could imperil our impartiality. We also watched a video that praised us as servants of democracy and the Constitution, and extolled our impartiality as the cornerstone of a fair trial.
Then Mitch McConnell surfaced on Fox News and eviscerated those enduring American values.
Those values – so crucial to a functioning democracy – are dying in plain sight. Why should we lowly citizens be inspired to do our duty when the game is being rigged at the highest level?
Without a smidgen of shame, and with no fear of being held accountable by anyone, the Senate Republican leader told Trump apparatchik Sean Hannity that if or when the impeached president is put on trial in the chamber, the fix will be in. McConnell said: “Everything I do during this (trial), I’m coordinating with the White House counsel. There will be no difference between the president’s position and our position as to handle this to the extent we can…I’m going to take my cues from the president’s lawyers.”
The way it’s supposed to work, in western democracies, is that impartial jurors hear the prosecution’s evidence, weigh the defense’s arguments, and render a verdict. Jurors do not coordinate with the defense; that concept would be laughable. But that’s precisely how Trump and his servile abetters are playing it, and if you didn’t think this kind of authoritarian nightmare was remotely possible when Trump stumped in ’16, then you weren’t paying attention.
You might be tempted to say, “Hang on. The Senate is not a courtroom.” But for an impeachment trial, it is indeed a courtroom. According to the Constitution (Article 1, section 3, clause 6), when the Senate holds such a trial, the senators sitting in judgment “shall be on Oath or Affirmation” – not as legislators anymore, but as jurors. And according to the Senate’s own rules for impeachment trials – Rule XXV, to be precise – all senators must pledge fealty to this oath:
“I solemnly swear, or affirm as the case may be, that in all things pertaining to the trial of _____, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”
Try to square that trial oath with McConnell’s White House collusion. In the words of political analyst Norm Ornstein, who has tracked Congress since the 1970s, “McConnell’s stunning and outrageous admission that he is in the tank already for Trump on the trial rules, is a flat violation of the oath he will take as a juror. If a jury foreman in a murder trial was found to have worked closely with the defense, he would be prosecuted.”
Try to square that trial oath with Senator Lindsey Graham’s candid violation of the oath even before he takes it: “I have made up my mind. I’m not trying to pretend to be a fair juror here…I have disdain for the accusations.” Try to square the trial oath with Senator Ted Cruz’s claim today that the mountain of factual evidence against Trump is “partisan” and that he won’t be a real juror anyway because real jurors are “sequestered.” (Most real jurors in criminal trials are not sequestered.) Or try to square the trial oath with the behavior of Senator Ron Johnson, whose involvement in the Ukraine scandal runs deep – his name repeatedly surfaced during the House impeachment hearings – and who still plans to serve as a juror even though he laments what he calls “the low level of the bar (for) what’s going to be considered an impeachable offense.”
Jeffrey Tulis, a professor of government at the University of Texas, wrote last week, on a conservative website, that the Senate Republican ‘tude “is patently anti-Constitutional…in literal violation of the (trial) oath. McConnell is diminishing the stature of the Senate.” But Trump’s cultists don’t care what professors say, because they’re all “elitists.” Besides, the Senate, under McConnell, has been reduced to a Trumpist sinkhole where hundreds of House-passed bills go to die.
Impartial Senate jurors would want to see all the evidence. Impartial jurors would at request that the Trump regime produce some of the evidence that it has withheld from the House – starting with witnesses, notably John Bolton, who’ve been mute thus far – but these Republicans, taking their cues from Trump, will either demand nothing or play the game of Butwhatabout by demanding the presence of Hunter Biden or the whistleblower.
Perhaps John Dean has the best solution. The ex-Nixon counsel, who blew the whistle in ’73, is repeatedly tweeting this: “Let’s impeach (Trump) now and NOT send it to the Senate…keep investigating in the House, and add such supplemental articles as needed! Just let it hang over his head. If the worst happens and he is re-elected, send it to the Senate. But keep investigating!!”
But assuming that scenario doesn’t happen, it sure looks like Alexander Hamilton was right when he pinpointed, in Federalist Paper 65, the greatest danger of the impeachment process – that a verdict “will be regulated by the comparative strength of the parties (rather) than by the real demonstrations of innocence or guilt.”
Or as Woody Allen declared, in his film Bananas, “I object, Your Honor! This trial is a travesty! It’s a travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham!” Because that’s clearly where we’re heading.