On fairness and impartiality

Posted 1/22/20

Impeachment is not, nor should it be, a show trial.

What’s on trial are the defendant’s deeds, not the sufferings of people who have been harmed, nor the list of grievances against …

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On fairness and impartiality


Impeachment is not, nor should it be, a show trial.

What’s on trial are the defendant’s deeds, not the sufferings of people who have been harmed, nor the list of grievances against him, nor American values. Humankind is not on trial, nor is racism, misogyny, or personality, or even democracy. What’s on trial here, if we are to believe in the process set up by the Constitution, are the defendant’s deeds and their relationship to laws violated, or not.

The fact that the defendant represents to many an existential threat to democracy, and to others the only man who can save America, is not on trial.

The fact that he unilaterally initiated a military strike that was widely considered to be an act of war inviting retaliation and further escalation, is not on trial.

The fact that he uses social media to provide notice to Congress of his intent to continue to use the Authorization for Use of Military Force Against Iraq Resolution of 1991 as he sees fit, which in itself may be a violation of law, is not on trial.

Only two things are on trial: abuse of power and obstruction of Congress. I have found making this distinction to be helpful, because the verdict from this trial, if justice is to be served, should be made solely on the basis of the articles of impeachment and not on political, social, personal, or other considerations. The verdict, if it serves justice, will come from solemn consideration of all available facts provided by documents and witnesses pertinent to the case, and not from political grandstanding.

In impeachment proceedings, the House of Representatives functions similar to a grand jury; holding hearings, gathering evidence, and, when warranted, indicting. If it is prevented from gathering evidence or interviewing witnesses, that is a potential crime.

If you read Alexander Hamilton’s words in the Federalist Papers #65, you will find an expectation of impartiality and an acknowledgement of the “healthy tension” that should exist between the legislative and executive branches of government. You will find language saying that crimes against the public trust and injury to society, which would include interference with the right to vote, must be investigated and judged impartially. You will not find repudiation of the separation of powers, or endorsement of a legislative-executive alliance that trashes checks and balances.

Unfortunately, the machinery of fairness and impartiality is so rusty that it’s possible for senators in their official capacities to get away with “total coordination” with the defendant.

While past rulings have held that senators are not jurors and are not held to a juror’s standard of neutrality, the chief justice ruled during the Clinton impeachment that the senate is a court. Senators are placed under an oath of impartiality, to affirm or swear to do “impartial justice according to the Constitution and laws.” Therefore, the role senators play is as de facto jury, but with more leeway and power than ordinary jury service. So, when Senate Majority Leader McConnell renounced any pretentions to open-mindedness or impartiality, whether as juror, judge or “trier of law and fact,” he cast public doubt on the strength and fairness of the process. Can Chief Justice Roberts accept a sworn oath he knows to be false?

If jurors, judges, or triers of law and fact in any other legally valid process stated outright and publicly that they were not impartial, they would be disqualified. No juror would ever be seated who acted as the defendant’s attorney.

But now, as press conferences and interviews full of partisan statements swirl through the media and are in turn amplified by punditry that results in public outbursts from the defendant himself, it fogs the facts on trial and demeans not only the highest office in the land but also the legislative branch that is meant to provide checks and balances. It casts doubt on systems of accountability, if not on justice itself.

Any trial must demonstrate that it serves justice faithfully. It must ensure the defendant is prosecuted, defended, and judged, and that all the other questions be left in abeyance. Justice insists solely on the importance of this particular defendant and his deeds.

(Karen Sullivan retired from the US Fish and Wildlife Service, where she worked on marine and estuarine issues, endangered species, and legislative/public affairs.)