No, the Senate is not a jury, and other misconceptions about impeachment

Byron York opinion at Washington Examiner

Timothy Snyder is a historian at Yale University. He has written books of varying critical reception on Russia and Eastern Europe. Lately, he has taken to warning Americans of what he sees as the danger the United States will fall into totalitarianism under President Trump. In the past few days, Snyder has turned his attention , not in a scholarly work but in a series of tweets, to a Trump impeachment trial in the Senate. His tweets were notable mostly because Snyder managed to pack a large number of misconceptions about impeachment into a very small space.

The tweets, ten in all, were directed toward Republican Sen. Mitch McConnell. McConnell has been majority leader since the GOP won control of the Senate in the 2014 election; he was most recently reelected (by acclamation among the Senate's 53 GOP members) after the 2018 elections. It is perhaps too obvious to note that since the majority leader represents the majority, he exercises a lot of power and influence in the Senate. 

Nevertheless, Snyder began his critique with this:

Why does Senator McConnell talk about how he will run the impeachment trial, and why do we listen? He has zero constitutional authority to decide its shape.

What does that mean? Does Snyder mean that McConnell as a person — Mitch from Kentucky — has no constitutional authority to decide how the trial will be run? Perhaps, but the fact is, McConnell is the Senate majority leader, and the majority, not any individual senator himself or herself, but the majority, has substantial authority to shape the trial. That's how the Senate runs. We listen to McConnell because what he says matters. Here are the next two tweets:

John Roberts is in charge of the impeachment trial. The Constitution clearly states that if the president is impeached, the chief justice presides.

Constitution: "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."

It seems hard to write a clearer sentence than, "The Senate shall have the sole Power to try all Impeachments." And yet there still seems to be some confusion on that score. If the Senate has the "sole power" to try the impeachment of Trump, how could Chief Justice John Roberts be "in charge" of the trial? It seems obvious, especially to anyone who watched the President Bill Clinton impeachment trial in 1999, that the chief justice's role in the trial will actually be quite limited. Does anyone believe that on any matter of great import, on which a majority of the Senate disagrees with Roberts, that the majority will defer to the chief justice? That the majority will meekly do what the chief justice says because he is "in charge" of the trial? That is not going to happen. After the Clinton trial, Chief Justice William Rehnquist described his role this way: "I did nothing in particular, and I did it very well." Next from Snyder:

The impeachment trial is a trial and the senators are all sworn jurors. No special role is foreseen in the Constitution for any specific senator.

Actually, the Constitution, which mentions juries in several places, does not say that the Senate will serve as a jury in an impeachment or that senators will be jurors. During the Clinton impeachment, Iowa Democratic Sen. Tom Harkin objected to the use of the word "juror" to describe senators. Harkin had a variety of reasons but basically believed Republican House managers were trying "to put parameters on what we could do in the Senate, that all we could do was to take the facts and decide." In Harkin's view, senators could, in fact, "be expansive." Rehnquist, in the kind of non-consequential decision left to the chief justice, agreed. "The objection of the senator from Iowa is well taken," he said, "that the Senate is not simply a jury; it is a court in this case. Therefore, counsel should refrain from referring to the senators as jurors."

On Snyder's "special role" point, the Senate operates by rule of the majority. Even though convicting Trump would take a two-thirds supermajority, much of what will take place in the Senate trial will be decided by majority vote. And the majority has selected McConnell to be its leader. So no, the Constitution does not specify a role for the Senate majority leader. In fact, that job is not in the Constitution at all; it emerged in the 1920s. But the majority rules, and when the Constitution says the Senate "shall have the sole Power to try all Impeachments," in today's Senate, that means the majority leader has a special role. The next three tweets from Snyder:

When you are a juror, you set aside your normal concerns and swear to be impartial. If you are a juror your obligation is to try a case, not advance your interests. The same is true of senators acting as jurors.

Senators in an impeachment trial therefore have an exclusively legal responsibility, just as any citizen serving as a juror in a trial would.

If we treat the impeachment trial as anything but a trial, we disregard the Constitution and endanger the rule of law and the Republic.

Snyder, like many, many others in the impeachment debate, appears to view the impeachment trial as the exact equivalent of a criminal trial in the justice system. Senators, he says, "have an exclusively legal responsibility, just as any citizen serving as a juror in a trial would." Further, if any senator fails to act in precisely the same way a juror in a criminal trial would act, that senator would "endanger the rule of law and the Republic." 

What to say about that? An impeachment trial is simply not like a trial in the justice system. Throughout, the Senate acts as a body. It can set the rules for the trial. It can stop the trial. It can start it again. It can pause the trial. It can rule out witnesses. It can call witnesses. It can dismiss the articles of impeachment altogether. It can do what the chief justice suggests, or it can ignore him altogether. Each senator can decide what evidence he or she wants to consider or reject. Each senator can vote guilty or not guilty or make up some kooky verdict based on Scottish law. All of that is part of having the "sole power" to try all impeachments.

On the question of impartiality, the senators will in fact take an oath to do "impartial justice." Here is perhaps the ultimate impeachment spoiler alert: They won't really mean it. Or, perhaps they will mean it according to their own political views and their own definition of "impartial." Does anyone think Democratic Sen. Mazie Hirono, for example, will render "impartial justice"? Hirono has already said that, unless Trump produces some miraculous exoneration, "the facts are that he committed an impeachable act, and I will vote to convict him." On the other side, several Republicans have dismissed the articles of impeachment as BS. Does that sound impartial? Look again at the Clinton case. In 1999, Senate Democrats were so impartial that they voted unanimously — 100% — to acquit the Democratic president. Were all of them rendering "impartial justice"? The fact is, individual elected officials, some of whom passionately support the president and some of whom passionately oppose him, will not render "impartial justice." The constitutional requirement of a two-thirds vote to convict means the case against the president has to be so overwhelming that two-thirds of decidedly nonimpartial senators would agree to convict. The next two tweets from Snyder:

If senators say that they regard an impeachment trial as political rather than legal, they have disqualified themselves as jurors.

If senators reveal how they will vote before the impeachment trial has taken place, they have disqualified themselves as jurors.

See above. Snyder's final tweet:

Senator McConnell has no constitutional authority to lead an impeachment trial. His constitutional responsibility is to serve as a juror. From that he has disqualified himself.

To say it a different way: When the Senate has a constitutional authority to do something, the Senate majority leader has a role in doing it. How else is today's Senate supposed to work? To impose some sort of judicial template on the process makes no sense. From the very beginning of the impeachment process, when commentators referred to the House Intelligence Committee, and later the House itself, as a "grand jury," the campaign to remove the president has suffered from inapt comparisons to the judicial system. Snyder is just the latest to make that mistake.