Rule of Law

Mitch McConnell Ignores the Senate’s Constitutional Duty in Impeachment

Last Thursday, Senate Majority Leader Mitch McConnell made Fox News Channel’s Sean Hannity and his viewers a promise: as the impeachment inquiry moves forward, Senate Republicans would be “in total coordination with the White House counsel,” explaining that “[t]here will be no difference between the President’s position and our position in how to handle this.”  McConnell’s statement may not be surprising—after all, this is the same Mitch McConnell who refused to even give President Obama’s Supreme Court nominee a hearing and a vote—but it is nonetheless deeply troubling.  His statement indicates that he has no interest in the Senate playing the role the Framers prescribed for it—and that he’s willing to thereby undermine an important component of our nation’s system of checks and balances.

Article 1, Section 3 of the Constitution lays out the Senate’s role in impeachment proceedings. After the House determines that there has been an abuse of the public trust that warrants articles of impeachment, proceedings continue in the Senate, which has “the sole Power to try all Impeachments.” While the Constitution’s directive leaves the Senate discretion with respect to the details of how it tries impeachments, the Constitution’s text and history leave no question that McConnell’s promise that “[t]here will be no difference between the President’s position and [the Senate’s] position” is at odds with the Framers’ design.

When the Framers put in place impeachment as the ultimate check on officials who were abusing the powers of their office, they designated the Senate as the trier of all impeachments specifically to ensure that there would be a deliberative and impartial check before any official would be removed from office.  Indeed, when it comes to impeachment proceedings, the House of Representatives is often viewed as the “grand jury,” which decides whether charges should be brought against an official, and the Senate is viewed as the court responsible for trying any charges that the House decides to bring.

In Federalist No. 65, Alexander Hamilton explained that the Senate takes on a “judicial character as a court for the trial of impeachments.” Recognizing the inherently political nature of impeachment and the subsequent danger that the decision to convict “will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt,” the Framers considered the Senate to be “the most fit depository” for the responsibility to try impeachments. Hamilton and others entrusted the Senate with this important power because they viewed it as the “least hasty” branch and the “most inclined to allow due weight to the arguments.”

To this end, all Senators take an oath before an impeachment proceeding begins. If, as expected, articles of impeachment are delivered to the Senate after passage by the House, Senators will swear or affirm “that in all things appertaining to the trial of President Donald J. Trump, now pending, I will do impartial justice according to the Constitution and laws, so help me God.”

If the Senate is to be sitting in its “judicial character” after Members take this oath, it should not be bowing in advance to the President’s wishes during his own impeachment trial.  By doing so, McConnell (and any other Senator, such as Lindsey Graham, behaving similarly) is abdicating his duty to the American people—one the Constitution specifically prescribes—and he is doing damage to the very institution he is responsible for leading.

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