I often remark that my Senate trial defending Judge Thomas Porteous has a jury that I would normally strike for cause en masse. An impeachment jury composed of politicians can be akin to a maritime inquiry with a jury composed of the Pirates of Penzance. This week, Senators in both parties seemed to signal their votes before an actual impeachment has occurred, let alone a trial,. Sen. Lindsey Graham (R., S.C.) declared “I’m not trying to pretend to be a fair juror here.” While the media focuses on Graham’s statement, Democratic senators have also made comments indicating that they have made up their minds. Indeed, yesterday, Sen. Chris Coons (D., Del.) declared that “if the Senate Republican majority refuses to discipline him through impeachment he will be unbounded.” It smacks of the Queen of Hearts in Alice in Wonderland: “Sentence first! Verdict afterwards.”
Both comments (and many others) undermine the integrity of the system and the legitimacy of any final decision. The Constitution often asks more from members than they are willing to give. In this case, they are expected to offer the House managers and the defense a fair hearing. To pre-judge the evidence before an actual impeachment signals to the public that this is simply a partisan muscle play and not a constitutional process.
“This thing will come to the Senate, and it will die quickly, and I will do everything I can to make it die quickly” and when confronted on the propriety of making such statements before a trial, Graham responded “Well, I must think so because I’m doing it . . . I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here . . . What I see coming, happening today is just a partisan nonsense.”
For his part, Sen. Coons express how “gravely concerned” he is with even the prospect of acquittal:
“The only reason that Speaker Pelosi changed her position and supported moving ahead with an impeachment inquiry was because what Donald Trump is alleged to have done, and all evidence points to him having done it, which is to invite foreign interference in our next election.”
Obviously, both states only fuel the partisan concerns that each is voicing about the other side. Of course, the Clinton impeachment did not have a single Democrat breaking ranks. Thus, the “profiles of courage” shown by senators in the Andrew Johnson case remain the exception rather than the rule in impeachment. It is possible however for senators to transcend such impulses . . . just not recently.