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The Senate Itself Is on Trial

Impeachment will be a test of whether the world's greatest deliberative body still exists in a moral universe.

Brendan Smialowski/AFP/Getty

Last week, Chief Justice John Roberts appeared before the Senate and took a solemn oath. Then he requested that the assembled senators do the same. “Do you solemnly swear,” he asked, drawing upon the chamber’s rules, “that in all things appertaining to the trial of the impeachment of Donald John Trump, president of the United States, now pending, you will do impartial justice according to the Constitution and laws, so help you God?” The senators collectively murmured their response: “I do.”

The Senate will spend the next few weeks seated placidly in their chamber, unable to speak or move for hours at a time each day. They will be compelled to listen as House managers lay out the case that President Donald Trump betrayed the country. The House’s de facto prosecutors will describe in detail what the evidence that is already available shows: Trump orchestrated a scheme to coerce a foreign power into smearing a potential 2020 opponent, and endeavored to do everything he could to prevent Congress from uncovering the plot.

Trump’s legal team has reportedlydismissed the validity of both articles of impeachment lodged against him,” but it remains unclear what it will offer in defense beyond this tacit rejection. The president’s frenetic tweets and public statements make it hard enough for fervent loyalists to defend him on television, let alone before the U.S. Senate. If his lawyers deny the allegations outright, they will be asking senators to vote in favor of their own stupidity. If they admit Trump’s wrongdoings but claim it doesn’t justify his removal from office, they will be asking senators to vote in favor of joining a corrupt plot against American self-government. Trump himself is on trial, but so are the 100 senators who must pass judgment against him.

Throughout the trial, both sides will draw upon the founding era for guidance about whether Trump’s actions merit his removal from office. In a way, the Constitution’s drafters anticipated this moment. At the time, Britain’s House of Commons had the power to impeach officials, while the House of Lords had the responsibility to conduct impeachment trials. During the Constitutional Convention, the power to impeach naturally fell to the House of Representatives. But handing the power to conduct trials to the Senate did not come as easily as it may seem.

In the Federalist Papers, Alexander Hamilton concluded that there was no workable alternative. Creating an ad-hoc tribunal out of nonfederal officials for each impeachment would add too many risks and complications, he wrote. Foisting the responsibility upon the Supreme Court would also be ill-advised. Hamilton feared that the unelected justices might not always possess the “credit and authority” in Americans’ eyes to remove presidents and other high officials from office, making their judgments “dangerous to the public tranquility.” What’s more, an impeached official could still face criminal trials and punishments after their removal from office. “Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune?” he asked.

That left the Senate as the best possible choice. The crimes that lead to impeachment, after all, would make the process inescapably political. “The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused,” Hamilton wrote.

In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The Senate, designed and structured to be a more deliberative and dispassionate body than the House, would best resist these forces.

But the framers’ insights can only take us so far. The Senate that existed in Hamilton’s era is a far cry from the Senate today. In the early republic, senators were chosen by state legislatures and represented their interests in the nation’s capital. This method, for all its faults, meant that the senator who might remove a president from office was not elected by the same people who put that president in office. In a country where elected leaders are the norm, Hamilton wrote, those who wield the impeachment power could “be too often the leaders or the tools of the most cunning or the most numerous faction,” and they may not “possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.”

That dynamic changed, however, in 1913, when the Seventeenth Amendment’s ratification made senators accountable and answerable to the electorate. This is not a fatal flaw to the impeachment process in and of itself. It’s possible to hold a president accountable for his crimes if lawmakers have enough independence and integrity to pursue the truth, and if the American people can be persuaded that the person they elected is unworthy of their trust. Richard Nixon carried 49 states in the landslide election of 1972, then resigned in 1974 because the Senate was all but certain to remove him from office. Bill Clinton never seriously faced removal from office during his Senate trial, not because his Democratic allies had a majority in the chamber but because even some of his Republican foes did not desire it.

The Constitution’s structure does not account for other elemental forces that shape our politics today. The framers expected that senators would be accountable to their consciences and their state legislatures. They did not anticipate that the president could call upon a hyperpartisan media infrastructure to keep his supporters ignorant of his crimes or that he could use a party primary system to influence the political futures of the jurors who would decide his own. The impeachment process that was created in Philadelphia in 1789 is not designed to operate alongside a wealthy donor class that can withhold reelection funds from lawmakers who vote the wrong way, so to speak, and shower its largesse upon more loyal alternatives.

In theory, none of this should matter. Elected officials in any democracy are expected to place the common good ahead of their own self-interests or simple factional expediency. The problem, however, is that America’s current political system rewards all manner of vice in senators more than it fosters a sense of civic virtue among them. It’s not surprising that the “ground rules” that will govern the trial, previewed by Senate Majority Leader Mitch McConnell on Monday, largely “attempt to speed the proceeding along” and make no allowance to admit new “evidence against the president unearthed by the House without a separate vote,” according to The New York Times.

Republican senators have every reason, for example, to oppose hearing from witnesses like John Bolton or Mick Mulvaney. If their testimony would aid Trump’s cause, it’s hard to imagine that he wouldn’t have forced them to testify himself. But since their testimony would more likely harm Trump’s case–and Republican senators’ electoral prospects alongside it—than aid it, they have every reason to keep that evidence out of sight and then cynically claim that the case against him went unproven.

This self-interest isn’t evenly distributed among the Senate’s ranks. A reporter asked Vermont Senator Bernie Sanders, one of the current front-runners for the Democratic presidential bid, if he was worried that the trial would hinder his chances. “Yeah, I am,” he replied on Thursday. “I’d rather be in Iowa today. There’s a caucus there in two-and-a-half weeks. I’d rather be in New Hampshire and Nevada. But I swore a constitutional oath as a U.S. senator to do my job.” The other three senators running for president—Massachusetts’s Elizabeth Warren, Minnesota’s Amy Klobuchar, and Colorado’s Michael Bennet—face the same personal dilemma and have expressed similar sentiments in public.

There is a silver lining in all of this, of course. Americans should not cynically dismiss the oaths that senators swore to uphold the Constitution and deliver impartial justice. They should expect that all 100 members of the Senate will act with the dignity and honor that their office requires—and that the public trust demands. But Americans shouldn’t be surprised if their senators fall short of those expectations, either for ideological reasons or out of political self-interest. And they should remember their senator’s flaws accordingly when casting a ballot this fall. Voters are jurors, too.