Some day soon, the actual impeachment trial of William Jefferson Clinton will begin, with 100 United States senators sitting in judgment. The senators, in anticipation of the event, keep referring to themselves as a jury. On a recent edition of “Larry King Live,” for example, no fewer than six of them (three Republicans and three Democrats) virtually chanted the mantra that it was their duty to act as “impartial jurors.” It is tempting to agree.
After all, they have been sworn to do justice, they are going to consider evidence and the resulting verdict must be either conviction or acquittal.
But in fact, the senators are not jurors, and the repeated use of that term is dangerously misleading.
In an ordinary trial, the decision-making responsibility is divided between judge and jury. The judge makes rulings of law, while the jury’s function is severely limited to determination of facts. In other words, the jury only decides “what happened” while the judge decides almost everything else. That is not the case with impeachment. Article I of the Constitution confers on the Senate the “sole power to try all impeachments.” That power is comprehensive–including law, facts and procedure–and it is to be exercised in its entirety by the Senate itself.
(It is true that the chief justice is called upon to “preside” over presidential impeachments, but only because the vice president–who is ordinarily the Senate’s presiding officer–is disqualified by an obvious conflict of interest. The chief justice does not sit as a judge in any ordinary sense, but more as a moderator or chair. He holds no binding legal or decisional power.)
And if there were any doubt, Article III of the Constitution actually makes this explicit, providing that “the trial of all crimes, except in cases of impeachment, shall be by jury.” So, what are the senators, if not jurors? In fact, they are all judges, or if you prefer, members of the court of impeachment, each one delegated full power to decide every issue involved in the case.
This distinction is crucial. President Clinton’s most fervent detractors have argued that the House of Representatives, in exercise of its own constitutional power, has conclusively determined the “impeachability” of the alleged offenses, leaving the senatorial jury the limited task of deciding whether the charges are true. But that is wrong. The Senate’s role is not at all confined to the ascertainment of facts. Under the Constitution, the senators need not–they may not–defer to the House of Representatives on the critical question of “impeachability.”
Thus, the senators must decide not only whether Clinton lied to the grand jury, but also whether so-called “perjury about sex” constitutes a high crime or misdemeanor of sufficient gravity to justify removing this president from office.
It is easy to understand why a senator would want to be a juror. The persona is so engaging: modest, contemplative, nearly anonymous–the humble citizen called to civic duty. But the constant references to senators-as-jurors can only serve to diminish their role and distract them from the expansive nature of their duty. It is not their job, as it would be a jury’s, simply to decide some facts and then move on. The Constitution does not allow them that luxury.
The senators are not determining just one case; their concern must be far greater than the fate of a single man. Rather, they are setting a legal and political precedent that may well guide our Republic for the next 130 years. Future generations will look back upon this Senate for direction whenever potential impeachments arise. Our descendants will not want to know only what happened, but also what principles govern the removal of the president. And so, the senators cannot merely decide–they have to judge.
