What History Really Tells Us About Senate Trials

200px-110th_US_Senate_class_photoBelow is my column on history — and some dubious historical claims — related to Senate impeachment trials.  As with the conflicting position on witnesses of some senators, the growing narrative in the media that Republicans senators have departed from the tradition of the Senate in commenting on trial has more hypocrisy than history behind it.  I have repeatedly encouraged senators not to discuss the evidence or their likely votes, but that is a rule honored historically in the breach by members of this curious trial jury.

Here is column:

George Bernard Shaw said that “only lawyers and mental defectives are automatically exempt for jury duty.” Unless, of course, it is the Senate, where you can be both of those and still sit as a required jury member.

The controversial role of senators in an impeachment trial is back in the news, as various House members challenged the right of some Senate Republicans to take the oath to promise impartial justice after defending President Trump. Less than 24 hours after being named one of the seven House impeachment managers, Representative Val Demings called for the recusal of Senate Majority Leader Mitch McConnell for being biased. Her proposal is as unfounded as it is ironic, since she called for the removal of Trump more than a year ago, which was before the Ukrainian phone call.

In reality, the rules of the impeachment trial are set by Senate majority vote. Moreover, the White House has not had its way on its two principal demands for summary dismissal or witness testimony. But the premise of much of this discussion is that the coordination and comments made by Republicans violate both their oaths and Senate tradition. This view was amplified by University of North Carolina law professor Michael Gerhardt, who testified as a witness with me in the House impeachment inquiry.

Poppy Harlow asked him “how normal or abnormal” it is for the Senate majority leader to work in such “lockstep” with the White House on a trial. Gerhardt declared, “It is extremely unusual. This is the first time in history when the president was coordinating with a big bloc of people from his own party in the Senate.” He continued, “Bill Clinton was not coordinating with the Democrats. In fact, they kept a fair distance between themselves. This is the first time we have seen this kind of coordination.” Despite my respect for Gerhardt, history does not actually bear out that statement.

Little is known of the coordination during the impeachment of President Johnson in 1868. However, the Senate was overwhelmingly Republican and opposed to Johnson, who was affiliated with Democrats and later the National Union Party. The very idea of the majority coordinating with him on the trial would have been absurd. With President Nixon, Democrats controlled both the House and the Senate. Moreover, no trial was being actively planned and Nixon chose to resign before he was impeached.

That leaves the trial of President Clinton. Again, there was no coordination with former Majority Leader Trent Lott because Republicans controlled the Senate. Yet Democrats Harry Reid and Tom Daschle did coordinate with the White House, as reported in the media. The book “The Breach” details the close workings between the Senate and the White House staff. Clinton also spoke with senators. Howard Kurtz of the Washington Post back then had reported on a “Democratic senator who was consulting regularly with President Clinton” on the trial, and an Associated Press story had reported that senators and the White House were finalizing the strategy for the trial.

Some like Daschle were uncomfortable. He said Clinton was “leaning very heavily” on Senator Ted Kennedy and noted that “these are the 35 names, things he wanted, and a strategy he wanted to pursue.” Daschle tried to maintain some distance but admitted that he and Kennedy pursued the same approach on the details for the trial. Now, however, the objections ignore the close coordination between House Democrats, who act as the prosecutors, and Senate Democrats, who act as the jurors. As with the White House discussions, there is nothing unusual in such coordination.

The same is true with pretrial commentary. Senators should refrain from stating conclusions about the evidence before trial, but they were never expected to stop being politicians. Unfortunately, the rule of restraint is observed in the breach by many. Minority Leader Charles Schumer is a rather curious ethics oracle in denouncing his Republican counterparts for expressing support for Trump. History shows that Schumer ran for the Senate based on his promise made before trial to vote to acquit Clinton.

When it comes to Senate trials, bias is in the eye of the beholder. While the media has focused on comments by Republicans, many Democrats have been as vocal in declaring Trump guilty as their counterparts have been in declaring him innocent. Senator Elizabeth Warren campaigned on his guilt and, when asked if she intends to vote to convict Trump, vowed clearly, “Of course I will.” Senator Kamala Harris declared, “As a former prosecutor, I know a confession when I see it. He did it in plain sight.”

Senator Chris Coons warned the nation about the dangers of failing to convict and remove Trump. Senator Amy Klobuchar not only declared Trump guilty but described the allegations against him as nothing less than a global Watergate. Senator Richard Blumenthal wrote that Trump is guilty ahead of the House impeachment vote. Senator Chris Murphy said Trump was “preying on a vulnerable foreign nation” for “personal political benefit,” while Senator Jack Reed accused Trump of a shakedown. Senator Brian Schatz claimed that supporting Trump would “swallow the republic.”

Senator Edward Markey said our “very democracy” is at stake here and “there is no place” for Trump to hide. Senator Sherrod Brown admitted he is “disappointed in my colleagues, this see no evil, hear no evil attitude.” Apparently, all the “see only evil, hear only evil” comments of his fellow Democrats are not a problem. House manager Adam Schiff called the pretrial comments a disgrace, but of course only those of Republicans.

Senators are not asked to sequester themselves or to take a vow of silence before a trial. The Framers had no delusions about the jurors designated in the Constitution. They knew that these trials demand an unnatural act to set politics aside in the jury deliberations. Politicians were no less biased or more circumspect in the 18th century than they are in the 21st century. Indeed, politicians are one of the few elements of government that have changed little over time in terms of their predictability or predilections.

While unfortunate, comments on the merits of impeachment are neither unprecedented nor unexpected from politicians. What is expected is that senators ultimately will vote their conscience. Past impeachments have shown that senators can indeed transcend petty political instincts when their names are called, not just by the clerk but by history.

Jonathan Turley is the Shapiro Professor of Public Interest Law for George Washington University and served as the last lead counsel during a Senate impeachment trial. He testified as a witness expert in the House Judiciary Committee hearing during the impeachment inquiry of President Trump.  He serves as both CBS and BBC legal analyst. 

127 thoughts on “What History Really Tells Us About Senate Trials”

          1. The gym opens in 15 mins Mespo. Meet me there

            1:06
            no age in life not thirty or sixty not
            01:10
            even a hundred should be a stopping
            01:12
            point or a giving up point where we
            01:15
            decide it’s time to begin wrapping it up

              1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty weeks, and needs to cite all his work from now on. – I don’t think the word ‘pontificate’ means what you think it means. We know how bad you are with dictionaries.

        1. David B. Benson says: January 22, 2020 at 4:56 AM
          Dershowitz is certainly making a fool of himself.

          Benson, It is 1:56 AM Pacific time where you live and you are calling a world renowned Jewish legal scholar and practicing attorney a fool. What has become of you Benson as a once published university faculty member that you come to the internet to insult and disparage others at 2:00 AM? Have you no self-regulation, goals, purpose in life and sense of pride at your agw? Would that you be as productive, academic and efficient with your remaining days on this Earth like Dershowitz instead of trolling the internet.

          Bah. It is 25 Degrees F where I live, 5:20 AM, where my faithful, lovely spouse and I are preparing to go to the gym and abide by:
          Mens sana in corpore sano

          You Benson are a window to the pathology of our culture.

          The Ant and the Sluggard at Harvest

          6 Go to the ant,b O sluggard,
          study her ways and learn wisdom;
          7 For though she has no chief,
          no commander or ruler,
          8 She procures her food in the summer,
          stores up her provisions in the harvest.
          9 How long, O sluggard, will you lie there?
          when will you rise from your sleep?
          10 A little sleep, a little slumber,
          a little folding of the arms to rest—
          11 Then poverty will come upon you like a robber,
          and want like a brigand.

          Proverbs 6:6-8

      1. ‘Relevant’ is in Gainesville’s hands a term of art which normal people would translate as ‘potentially useful talking point fodder for partisan Democrats’.

        1. Let me help you outTIA. I know you’ve been hiding from the evidence too.

          An example of a relevant document from the State Dept would be emails to and from Pompeo when Ambassador Voinavich (sp?) was replaced or from Taylor to and from the OMB when he sought further explanations for the military aid hold.

          I hope this helps you if happen to get curious or want to seek exonerating. evidence. You are confident he’s innocent right? So, let’s find the e evidence proving that!

          1. Let me help you outTIA. I know you’ve been hiding from the evidence too.

            No, I’ve been laughing at your framing of ‘the evidence’. What we have is a Biden family scandal that people like you have been madly attempting to spin as impeachable offenses by Trump.

            You’re all the doomed test pilots in The Right Stuff. “I’ve tried A, I’ve tried B, I’ve tried C…”.

          2. The transcript is the best evidence and the only evidence from first-hand sources. The rest is btb sophistry. He wouldn’t know a logical argument if it sat down in his study. Typical Leftist — intellectually dishonest.

            1. Mespo apparently doesn’t know what a 1st person witness is and also thinks that the phone call was the only event in the administrations month long + effort to shake down Zelensky. Those who heard the phone call as part of their job are 1st hand witnesses and so are SD employees who worked with Trump’s agent Guliani and Sondland. Unfortunately Parnas is a 1st person witness with corroborating documents. Pompidou, Bolton, Mulvaney, and several other lesser OMB and SD officials ‘re also 1st person witnesses.

              If Mespo is confident of Trump’s innocence he should want more of these 1st person witnesses to come forward and exonerate him. Any other American should want them interviewed do we can get to the truth. Those who oppose more witnesses are afraid of the truth.

              That seems to be most posting on this board.

              1. Any other American should want them interviewed do we can get to the truth.

                Thank you once again for reminding everyone the House Democrats impeached a President without sufficient evidence, proving this ridiculous process has been all about tampering with the 2020 election.

                Reported tonight: Schiff again lied, this time regarding Parnas.

              2. Btb:
                Those who overheard the telephone call aren’t better witnesses than the transcript itself lest you think they have perfect memories and the impressions of the participants are the only thing that matters not the musings of the onlookers or onhearers. Everyone involved has said there was no pressure on Ukraine including prominently the Ukrainians themselves. Btb seems to know better and thinks that an investigation into corruption is corruption itself. It isn’t and no particle of American Law immunizes someone against investigation merely because they might run against an incumbent as dolts like btb seem to suggest. It’s all lies by liars, fraud by frauds and misdirections by misdirectors. Btb represents that group of people who deceive for power. It’s not new or even working as Trump has the highest favorability polling of his Presidency according to Gallup and Rasmussen. The cravenness of the Dims knows no bounds nor their useful idiots like btb. In a sane society, Schiff and Pelosi would be led off in chains for sedition and their minions investigated for the family funding corruption they so obviously want to conceal. It’s a new day in America and the corporatists and public trough feeders feel insecure about their future with Trump in charge. I see indictments on the horizon and a lifting of rocks from which the Dims will crawl. They’re being exposed for the spineless leaches they are. Let the sunshine in and the reckoning begin. If that that starts in Gainesville with our local sophist, that’s okay with me.

                1. Mespo, you really should learn more about what you comment on, especially when infused with that deranged true believer conviction on the eternal damnation awaiting those you disagree with on politics. Get help. Really.

                  Those listening in on the phone call do so as professionals and take their own notes, the phone call record we have is not a true transcript and while agreed to be largely accurate missing some detail, nor as I stated and as you have ignored was the phone call the only event in a month’s long effort by the administration.

      2. Holly I appreciate you know nothing about the evidence, nor most of your fellow Trump supporters. Too painful for you.

        But no, this was about documents Trump refused to turn over without any legal justification – stating that you can just ignore the House is not legal justification, even if JT has failed to notice this unprecedented and unconstitutional act.

        Like you, the GOP Senators are afraid to see it, and more importantly afraid for Americans to see it. They don’t have any gonads left. It was either their balls or get the evil eye tweets and a primary.

        1. I appreciate you know nothing about the evidence

          So the answer to my question is YES, they impeached the president without the evidence they now are whining they need to impeach the president.

          As far as the vote today you lying SoS was not anything more than a rejection to Schumer’s proposed amendment to the rules. In the immortal words of Will Hunting, how do you like them apples!

        1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty weeks, and needs to cite all his work from now on.

          In parliamentary procedure, the verb to table has the opposite meaning in different countries:
          In the United States, to “table” usually means to postpone or suspend consideration of a pending motion.
          In the rest of the English-speaking world, to “table” means to begin consideration (or reconsideration) of a proposal.

          Benson, stay in your own lane.

          1. Bogan, it depends upon the Rules of Order in use.

            I was a faculty senator for awhile.

            Stay in yours; stick to art history.

            1. David Benson is the God Emperor of Making Stuff Up and owes me forty-two citations (one from the OED, one from the town ordinances and two from the Old Testament), an equation and the source of a quotation, after sixty weeks, and needs to cite all his work from now on. – did you have local rules? Did you give mulligans?

  1. Does the Senate have the prerogative to say to the House- “Even if what you say is true it doesn’t rise to the level of impeachable offense under the Constitution. Therefore.we are under no obligation to inquire further into the matter, unless members of the Senate choose to do so.” And in that way avoid any discussion of the facts or the need to conduct additional inquiries?

    1. Does the Senate have the prerogative to ….. avoid any discussion of the facts or the need to conduct additional inquiries?
      ___________________________________________
      sure but where’s the fun in that.
      You are obviously missing the point of all this bruhaha

  2. GOP Senators vote down subpoena of relevant WH documents. The cover up party starts its shameful public decline into Trump’s b..ch stable.

    On the good side, the House managers are killing it with a lot of case making facts mixed into the technical presentation on procedures. Too bad Trump doesn’t pay his bills or he might have gotten some decent attorneys.

  3. What is expected is that senators ultimately will vote their conscience.

    They have to have one first.

  4. Somebody tell our host “legal scholar’ – Theresa impeachment trial going on and his posting broadsides against Hillary and the NYTs.

    No doubt I am prejudiced, but so far it’s Trump’s amateur hour lawyers who think they’re on the Hannity show blasting the House managers personally and telling lies “Trump wasn’t allowed witnesses”. By contrast Schiff for the House presented a long and organized presentation on the precedents for impeachmentbtrials and the facts of the charges. Even the GOP Senators must be wondering who these quacks are and where are the adults.

  5. Our Justice System..

    Does Not Recognize Witness Reciprocity

    There has been much talk about letting John Bolton testify ‘only’ if the Bidens are made to testify. But according to a former U.S. Attorney, our justice system does not recognize any concept of ‘Witness Reciprocity’. Witnesses can only be called if they can give testimony relevant to the charges filed.

    Trump defenders will say, of course, that the Bidens ‘are’ relevant to this case. But neither of the Bidens has been charged with any crime. Nor does it appear they committed any crime. Nor do the Bidens have any direct knowledge of the charges against Donald Trump. Therefore neither Biden could be called a ‘relevant witness’ for the pending case.

    https://www.washingtonpost.com/outlook/2020/01/20/every-john-bolton-hunter-biden-no-witness-reciprocity-is-not-thing/

    1. Regarding Above:

      Excerpt from the attached article:

      Trump’s sole demonstration of a personal interest in fighting foreign corruption is tied to the Bidens — and by extension his political future. The president has shown no interest in fighting corruption in other regimes and has embraced leaders in countries where corruption is rife, such as North Korea, Russia and the Philippines. On the contrary, rather than demonstrating a desire to fight corruption abroad, Trump has shown a desire to fight for it.

      In their new book, “A Very Stable Genius: Donald J. Trump’s Testing of America,” Washington Post reporters Philip Rucker and Carol D. Leonnig write that Trump clashed with then-secretary of state Rex Tillerson over the need for the Foreign Corrupt Practices Act, a key law that prevents U.S. companies from participating in corrupt business practices abroad. “It’s just so unfair that American companies aren’t allowed to pay bribes to get business overseas,” Trump said, according to the book, adding, “We’re going to change that.”

      In Ukraine, Trump’s only concern involved the Bidens and Burisma, despite his stated view that the country was “totally corrupt.” Nor did the president seem to be interested in an investigation that could aid U.S. law enforcement in bringing wrongdoers to justice. His demand was only for the announcement of an investigation. He has apparently not forgotten how devastating an announcement alone can be to a campaign.

    2. “Trump defenders will say, of course, that the Bidens ‘are’ relevant to this case. But neither of the Bidens has been charged with any crime.”

      Neither has Trump…

    3. You don’t know what relevant or even material means. The Biden’s are both since it’s their corruption at issue. Only a hopeless partisan would suggest that knowing if probable cause to investigate them matters not at all. That they haven’t been convicted of a crime yet is faint praise indeed. Epstein wasn’t convicted of his most recent criminal travesties yet before his suspicious death. Think he’s like the driven snow? The Dims look like a desperate pedophile ring and no amount of perfume gloss will mask that odor.

      1. Mespo, while wary of setting you off on another attack of delusional Calvanism, I note that the supposed corruption of the Bidens is not the issue. You’re seriously confused. Truman’s alleged use of his powers as President for personal gain while attempting to involve a foreign power in our election is the issue.

        As an alleged attorney, surely you should know that proving illegal acts by others – by the way, absent a teary confession by Hunter naming his father as co-conspirator, that will not happen on the floor of the Senate – is not a proper, or even allowed defense for a client accused of a crime.

        As an adult, surely you know that thinking Trump was concerned with corruption – give us a break mespo – and not saving his own ass in the 2020 election – it has been demonstrated that he commented on unfavorable polling vs Biden within hours of the phone call – is a laughable proposition. If the Biden’s are somehow relevant, then so are Trump’s record on concern for corruption by allied government (let’s see, Putin, Saudis Arabia, Erdogan, Lil Kim) as well as alleged nepotism and involvement of progeny in questionable financial arrangement. Are you ready for that? I don’t think Trump’s bargain basement lawyers are.

        1. bythebook – isn’t this impeachment trial an illegal use of Democratic power for personal gain? Aren’t they trying to overthrow the 2016 election? Or interfere in the 2020 election?

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