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Is the Oath a Joke?

Republican senators are about to answer that question.
January 20, 2020
Is the Oath a Joke?
US Supreme Court Justice John Roberts (C rear) is escorted to the US Senate Chamber by Senators Lindsey Graham (L), Roy Blunt (2nd L), Patrick Leahy (R) and Dianne Feinstein at the US Capitol in Washington, DC, on January 16, 2020. - With the Senate formally accepting the two articles of impeachment, Chief Justice Roberts was sworn in Thursday to preside over the impeachment trial of US President Donald Trump. Roberts then swore in the 100 senators, who together will serve as a court of impeachment. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)

Last Thursday, senators swore an oath to “do impartial justice according to the Constitution and laws” in the impeachment trial of President Donald Trump. Does that oath mean anything? Anything at all?

Citizens can’t help but suspect the answer is no. Since the two Articles of Impeachment were approved by the House of Representatives last month, several Republican senators, following Majority Leader Mitch McConnell, have publicly and expressly disavowed any intention to follow their new oath “to do impartial justice” in the Senate impeachment trial.

Over the course of American history many politicians have failed to live up to their oaths. But there aren’t many cases when an elected official publicly promised to disregard the oath prior to swearing to follow it.

Americans should be worried about the state of American politics when they see such corruption from some of our political leaders. They should be concerned by this demonstration of how much the corruption of Trump and Trumpism has infected major American institutions, now including the Senate—which is, by design, the most important institutional check against presidential abuses of power.

But senators have now publicly sworn to do impartial justice. The impressive ceremony was carried live on television. Major broadcast news anchors and journalists remained silent as the oath was administered to the chief justice of the Untied States by Senate President Pro Tem Charles Grassley, and then as the chief administered the oath to his fellow judges—the senators—and the senators were then called up to sign the oath book.

The occasion was so solemn and so dignified, that one couldn’t help but wonder what was going through the minds of each senator as he or she signed the oath book, their actions witnessed by millions of fellow citizens.

This occasion offers the potential for a kind of moral and political restart of the impeachment trial, as senators ask themselves—and each other—just what it meant for them to swear to do impartial justice.

Some senators and commentators have emphasized that senators as jurors in an impeachment trial are not, in many respects, like jurors in ordinary criminal proceedings. The senators know the parties involved. They are allowed to have prior views or biases. Not only are they not sequestered from the news—they may actively comment in the media as the trial progresses. They may have opinions about the likely verdict.

These true facts which prove that senators are different from impartial jurors in a criminal court have provided an excuse for the argument that the senators cannot be impartial in any respect. Senator McConnell even took to the floor of the Senate to deny that the roles of the senators and their obligations are different in an impeachment trial than in usual Senate business. Senators are ordinary partisans all of the time, according to the majority leader.

This is nonsense.

Mitch McConnell avoided explaining why the Constitution would require him to take a new oath if his view is correct. And he gave no explanation of just what that oath to be impartial actually means. Only in the upside-down world of Trumpism can taking an oath to be impartial mean that one need not be impartial.

Common sense and the experience of previous impeachment trials offer suggestions on the meaning of the impartiality to which senators have now pledged themselves.

First, senators can have opinions and biases going in to the trial, yet can still be open to evidence that might change their mind. They can even be skeptical that evidence will change their mind—so long as they maintain some willingness to be open to the weight of the evidence.

Second, a commitment to impartiality requires that one agree to consider evidence relevant to the charges, including new evidence that both House managers and White House defense lawyers seek to introduce.

Third, impartiality implies that senators will look to the chief justice to rule on various matters, including whether proposed evidence is relevant to the proceedings, and to listen to the reasons for his rulings. Impartial senators would usually defer to his judgment, because the chief is presumed to be actually impartial (in the non-Trumpian sense of the word)—though of course the senators will still reserve the responsibility to challenge the chief’s rulings if they have good reasons to disagree with them.

Finally, impartiality means that senators can sincerely tell their constituents that they would make the same decision regarding their verdict if the president was a member of the opposite party. This means that Democratic senators who support impeachment could affirm that they would also support impeachment if, for example, Hillary Clinton or Barack Obama were charged with the same offenses and with similar evidence. And Republican senators who oppose impeachment could sincerely say that they would not seek to impeach a Democratic president charged with the same offenses with a similar body of evidence.

Human beings will still be fallible, opinionated, even prejudiced.

Indeed our Founders expected no less. But there is a big difference between lamentably falling short of the highest standard and actively scorning it.

Right now, an overwhelming percentage of the majority party in the U.S. Senate isn’t falling short—it’s not even trying.

Indeed, it’s boasting about how it is not even trying. “Enlightened statesmen will not always be at the helm,” Federalist Number 10 cautions us. But, as Madison also writes later in the Federalist, “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form.”

Are we today utterly lacking in such qualities? Or, might citizens press their Senators to summon up some buried residue of decency and a modicum of impartiality?

William Kristol and Jeffrey K. Tulis

William Kristol is editor-at-large of The Bulwark.
Jeffrey K. Tulis is 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.