Saturday, December 21, 2019

The Impeachment Oath and the Article VI Oath

David Pozen

Pursuant to Rule XXV of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials, every senator will soon swear or affirm to “do impartial justice according to the Constitution and laws” “in all things appertaining to the trial of the impeachment” of President Trump.  This rule implements the instruction in Article I, Section 3, Clause 6 of the Constitution that senators “shall be on Oath or Affirmation” when trying impeachments.  Historians have suggested that having a special impeachment oath was meant to reinforce the solemnity of the affair; Rule XXV links that solemnity to an ideal of adjudicative impartiality.

The senators have, of course, already taken another constitutional oath.  Pursuant to Rule III of the Standing Rules of the Senate, which implements the Oath Clause of Article VI, every senator swears or affirms before assuming office to “support and defend the Constitution.”  As Richard Re observes, this ritual is the most prominent social practice through which American officials promise adherence to our supreme law.

These two oaths must be reconciled.  The promise to support and defend the Constitution binds senators in all that they do on the job.  There is no lex specialis governing impeachment trials that could displace that general duty.

The interaction of these oaths suggests a potential complication I have not seen noted in the flurry of recent commentary on the impeachment one.  Given sky-high levels of constitutional polarization as well as the “existential” bent of contemporary GOP constitutional politics, a number of Republican senators may have convinced themselves, at least on some level, that protecting President Trump from their fundamentally lawless and un-American Democratic colleagues is precisely what “supporting and defending” the Constitution entails—no matter what the evidence might show about Trump’s abuses of power.  (If this sounds extreme, recall that both the 2012 and 2016 Republican presidential platforms declare the GOP, and only the GOP, to be “the party of the Constitution.”)  And so, for these senators, the Article VI oath seems to demand a kind of partiality toward the president that the impeachment oath seems to forbid.

These senators probably won’t be so brazen as to stand up and announce that, in this instance, their impeachment-specific duty to do impartial justice must be overridden by their larger duty to support and defend the Constitution.  More likely, they will try to minimize any tension between these two duties in their judgments of law and fact through various “strategies of reconciliation.”   For instance, they might conclude, for the sorts of reasons Marty Lederman has discussed on this blog, that “impartiality” must be understood loosely, perhaps even aspirationally, in the inherently politicized impeachment context.  Or they might read Rule XXV’s “according to the Constitution” clause to tie the meaning of impartial justice to a broader assessment of constitutional fidelity (which, again, in their minds may counsel doing whatever it takes to thwart the diabolical Democrats).  Or they might construe the command of impartial justice in light of what they see as the larger injustice of the Democratic effort to whitewash Joe Biden’s corruption and to undermine the Trump presidency.  Enabling all such strategies, they might also enlist some good old-fashioned motivated reasoning to deny the validity or to discount the significance of any apparent proof of presidential misconduct.

All of which is to say, narrow inquiries into the impeachment oath may mislead.  For this is one more area in which the belief that your political rivals are themselves a threat to the Constitution has enormous power to rationalize—not necessarily justify, but rationalize—conduct that would otherwise clearly run afoul of controlling legal directives.

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