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.