Monday, December 23, 2019

Wanted - a few good Republican senators in pursuit of impartial justice. They must 'rise to the demands of principle and statesmanship.'

It is still not clear that such senators exist.

Ruth Marcus, at the Washington Post, asks "In an era of reflexive tribalism, at a moment of maximal partisanship, how should we understand the meaning of the oath that 100 senators will soon take to do “impartial justice” in the impeachment trial of President Trump? Is the oath meaningless blather glossing over the certainty of a preordained conclusion — or can it serve some useful function notwithstanding that reality?

But why are we even entertaining those questions?

You could cite Trump’s blatant obstruction, but the real problem is tagged by William Kristol (editor-at-large of The Bulwark) and Jeffrey K. Tulis (Professor of Government at The University of Texas at Austin, author of The Rhetorical Presidency, and co-author of Legacies of Losing in American Politics) writing in The Bulwark . They have some thoughts about how to fix that problem. Here are their closing observations. (We’ll return to Marcus’ ideas at the end of this post.)

America’s Mitch McConnell Problem The Senate majority leader is a danger to the Constitution.

In contrast [to speaker of the House Nancy Pelosi], what has Senator McConnell done in response to the Speaker’s request and the proposal of Minority Leader Schumer that the Senate tailor the Trial Rules for Impeachment to this case in a way that permits the House managers to make their case and the president’s counsel to defend him?

McConnell has shown contempt for the very notion of a fair trial.

Indeed, he and Sen. Lindsay Graham have announced—effectively pledged—that they will not follow the new oath that they will be required to take once the chief justice is invited to preside.

We need to be very clear on this point: Many senators and congressmen throughout American history have not lived up to their oaths, whether it be the regular oath they take upon election, or the special oath for an impeachment trial.

But we can’t think of any previous senator who has publicly promised not to follow their oath. And we certainly can’t think of others who, like McConnell and Graham, previously participated in an impeachment trial in which they purported to be faithful to their oaths and urged others to be as well.

It is not a case that McConnell and Graham are mistaken, or ignorant of their special duty. Rather, they know what they are doing, are conscious that it is wrong, and are willfully pursuing this course anyway in order to support a president whose prospect for anti-constitutional behavior had worried both of them during the 2016 election season. These are why their comments on the upcoming Trial are among the most contemptible by any Senators in American political history.

Fortunately, the ending of this story does not need to be written by Mitch McConnell. A small, bipartisan group of senators can fix this mess in an afternoon.

The main goal should be to enable both the managers for House and the counsel for the president to put on their strongest cases in a fair trial.

The Senate has other duties as well, and the reason for supplementary rules regarding specific impeachment trials in the past has been to balance the need for a full and fair trial with the other business of the Senate. This means there may be restrictions on the number of witnesses called and time allowed to question them. But the point of fair rules is not to constrain the ability of the prosecutors and defense attorneys to put on their best case. It is to make it possible for them to put on a robust case and to balance that need with the rest of the nation’s pressing business.The impeachment of the president of the United States by the House of Representatives is not an act to be trivialized or dismissed. The Constitution demands that the Senate take this action seriously. Senator McConnell is abusing his own office in his attempt to dismiss a trial before it can be conducted fairly.

If a bipartisan group of public-spirited constitutionalists on both sides of the aisle come together, they can tell McConnell that he will only get 51 votes for amending the Rules of the Senate for Impeachment Trials if he works with them to fashion a fair process that allows for crucial documents to be compelled to be produced, and a reasonable number of witnesses to be called—and for reasonable times and procedures be set.

Republicans should be willing to accept the witnesses the Democrats want called, and Democrats should be generous in permitting the president his number of witnesses. By generous, we mean that, contrary to Senator Schumer’s proposal, judgment on the relevance of the president’s witnesses should be made publicly at the trial, with the aid of the chief justice’s rulings, rather than ruled out now.

If the president wants to call Joe Biden, for example, so be it. Objections to particular questions to any of the witnesses, including perhaps the president himself, can be adjudicated at the trial by the chief justice and the senators, acting in their new role as fellow judges.

There is no good reason to fear a fair and complete Senate trial. The House managers will make their case, and whatever additional witnesses they can call in the Senate whose testimony was blocked in the House will be experienced public servants who will, we trust, testify truthfully and appropriately.

The president’s lawyers may be tempted to try to create what some of us would consider a circus, but the character of the president’s defense surely has to be up to him. In any case, the nation will survive a bit of a circus. And ultimately we need to turn to their common sense to judge the president and his defenders.

If conducted under rules acceptable to all Senators, as was the last Trial twenty years ago, at the end of the day, a verdict will be rendered that will vindicate the Constitution and convey to the nation a sense of a fair and orderly process. The only way to get to that outcome is if some Senate Republicans refuse to lower themselves to be the mere agents of an unprincipled and partisan leader and instead rise to the demands of principle and statesmanship.

Ruth Marcus also has some ideas about what ‘impartial justice’ means to the Senate.

In an impeachment trial … the Senate is the ultimate tainted jury pool, inherently biased. Of course, many senators have already concluded how they will vote — not only Republicans but Democrats as well. Anyone huffing over Republicans’ peremptory dismissal of the charges needs to take into account that numerous Democrats have already announced the opposite conclusion. Boasting over closed minds is as unattractive for one side as the other.

And, of course, Republican senators will work with the president and his advisers as the trial proceeds, just as Senate Democrats coordinated with the White House during Bill Clinton’s impeachment.

Still, it cannot be — it should not be — that the solemn admonition and the sworn promise to do impartial justice is devoid of content. It is in the nature even of politicians, some of them, anyway, to aspire to reflect their better angels. Senators have a way of worrying about that history thing.

Granted, this hopeful assessment must contend with the brute-force reality of modern politics, as exemplified in the brazen assertion of Senate Majority Leader Mitch McConnell (R-Ky.), “I’m not an impartial juror.” Are McConnell’s Republican colleagues willing to announce to their constituents that they take their own oaths so lightly? If not, what might impartial justice constitute?

For both sides, it would mean toning down the conclusory rhetoric. If hypocrisy is the tribute that vice pays to virtue, assertions of open-mindedness in the Senate trial offer the healing balm of seeming statesmanship. Perhaps this would be a scant fig leaf barely obscuring venomous partisanship. Yet modeling good behavior, even if insincerely, has a way of producing more.

For Democrats, dispensing impartial justice would mean soberly considering the implications of removing a president from office for the first time in history. That is no small step.

For Republicans, doing impartial justice would mean dropping the extraneous complaints about bad motives and unfair process that supposedly taint the impeachment inquiry and taking seriously the substantive charges against the president. The rest is noise.

Why does it matter whether Democrats were determined to impeach Trump from the start? Some were, certainly, but impeachment didn’t happen until the Ukraine episode surfaced. Likewise, even if the president was somehow denied due process in the House proceedings — he wasn’t; he rejected the process that was offered — a set of serious allegations is now before the Senate. Members have a constitutional duty to take those seriously even if they believe the House did not perform adequately.

That leads to the most important issue the Senate faces, which is whether to hear from witnesses with information relevant to the charges against the president, and to obtain documentary evidence that Trump summarily refused to provide to the House. The matter of whether the House should have pursued its subpoenas is irrelevant at this point, with the Senate constitutionally obligated to conduct an impeachment trial.

The current festival of dueling, side-switching quotes from the Clinton trial in which Republicans asserted the importance of hearing from witnesses and Democrats dismissed the necessity obscures two key points. First, witness testimony was obtained in Clinton’s case; that sets a precedent. More important, the Clinton witnesses were far less essential. There was a full record of testimony and documents that is missing here. It is possible to conclude that there is enough evidence, even without it, to convict Trump. It is irresponsible to determine that he should be acquitted without hearing from such relevant parties as former national security adviser John Bolton and acting White House chief of staff Mick Mulvaney.

Doing impartial justice doesn’t compel a vote to remove the president from office. Republican senators are entitled to conclude that Trump’s conduct does not rise to the level of high crimes and misdemeanors. But their oath requires something more than an eager leap to that result.

That mandates not only grappling with the evidence against the president but also, before dismissing it as inadequate, ensuring that the relevant information has been put before them, before the American people and, yes, before history.

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