On December 17, Senate Majority Leader Mitch McConnell (R.-Ky.) stated re the upcoming trial of impeached president Donald Trump, “I’m not an impartial juror.” On January 16, Chief Justice John Roberts swore in the Senate. McConnell pledged to “do impartial justice.” Anyone for cognitive dissonance?
Then McConnell doubled down. Before preliminaries this past Tuesday, he asked, “Can we still put fairness, evenhandedness and historical precedent ahead of the partisan passions of the day?”
Alas, fair is a word generally honored in the breach. Trump’s trial likely will be a great deal less than fair to the American people. Procedures and voting will reflect near-total partisanship. It’s a given that Republicans will acquit Trump.
Personally, I believe Trump’s phone call to Ukraine president Volodymyr Zelensky constituted abuse of his office for personal political gain. This calls for removal from office. But I stress the word believe.
Impeachment is somewhat similar to indicting someone in a criminal case, although it’s a political matter and involves interpretation of “high crimes and misdemeanors.” Still, an impeached president, like anyone indicted by a grand jury, remains innocent until proven guilty at trial. That’s fair.
Trial in the Senate roughly approximates a court trial although with major differences. It’s also political. And the 100 senators are not jurors like citizens summoned to render verdicts in criminal courts. Senators are not randomly selected but elected (or appointed) politicians. Prosecuting and defending teams cannot dismiss them at will (peremptory challenges, usually limited) or by showing cause( unlimited). Importantly, unlike criminal jurors, Senators vote on rules pertaining to the trial’s conduct.
Still, fairness demands that the Senate conduct itself according to criminal jury standards: Be open-minded, place the burden of proof on the prosecution, listen to and evaluate the evidence, put aside personal preferences.
So, in spite of what I believe, I consider Trump—whom, to be forthright, I find reprehensible—innocent until and unless the House impeachment managers make a convincing case. To be fair to justice, this may require witnesses and documents not available or requested during the impeachment process.
Citing the imprecise parallels with criminal trials, attorneys may call witnesses who did not testify before a grand jury. They and new evidence may clarify the case for either party by revealing truth.
Senator McConnell at best hedges. Republicans voted down Democratic-proposed amendments re subpoenas to secure new witnesses and documents now. The matter is tabled. Note that whether new witnesses and documents will help or hurt the impeachment management team remains open for discussion.
Still, Mitch McConnell wants to be fair—as he was fair to America by blocking a Senate hearing on Judge Merrick Garland, whom President Barack Obama nominated to the Supreme Court. According to McConnell, Obama had less than a year to go in his second term. A new president should have the right to fill the vacant seat. A sitting president in his last year should sit on his hands.
In the name of fairness, I propose a deal. Trump goes Scott-free without further prosecution. The Senate goes back to its regular business. In return, Trump, less than a year remaining in his term and no assurance of re-election, retreats to Mar-a-Lago and relinquishes the responsibilities of the Oval Office.
Given the integrity modeled by Mitch McConnell, nothing could be more fair.
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