Sworn Oaths in Impeachment Trials
Adverse Inferences from Non-production of Evidence
“I, --, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” The Congressional Oath of Office
“The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.” US Constitution Article 1, Section 3
The Senate practice has been to require each Senator to swear or affirm that he will do “impartial justice according to the Constitution and laws”. https://www.senate.gov/artandhistory/history/resources/pdf/1_1868ImpeachmentRules.pdf In the case of the impeachment of President Donald J. Trump, Chief Justice Roberts swore in each of the Senators as follows: "Do you solemnly swear 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?" Each Senator so swore a solemn oath.
The phrases “impartial justice according to the Constitution and laws” and “I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same” stick out for me.
One would hope that each Senator would ask “would your vote be the same if the President was a Democrat or a Republican”? Would you vote the same if Barack Obama or Ronald Reagan were on trial? Would you vote the same if Bill Clinton or Donald Trump were on trial? Would you vote the same if Richard Nixon or Jimmy Carter were on trial? I think as citizens and voters we would all want to know that our elected Senators are true to their oaths of office and to their special oaths as impeachment jurors to do impartial justice.
Personally I found the House evidence was overwhelming that the President had abused his office in just the ways that our founding fathers feared and would have considered an impeachable offense. Yet the national opinion and the Senators’ opinions are sharply divided on partisan lines on removing him from office. Partly that is the result of ever hardening political partisan differences of opinion on the many great and momentous issues of our times from climate change disasters on down. As a nation, we are not helped by rampant “lying” about readily discernible facts on the internet, on national TV, on radio, and in political debates about our differences of opinion. One could say “the President’s conduct was wrong, but I do not think it warrants his impeachment”. Having heard the evidence presented so far, one cannot reasonably say “that was perfect, or the President did nothing wrong”. We’ll have to wait and listen to the President’s side.
On Monday and Tuesday, we will see whether the President’s attorneys present any exculpatory evidence, any apologies, any explications. Having heard the opening arguments from both sides and then having asked all relevant follow up questions, it will then be instructive to see how many Senators want to hear additional evidence from those witnesses who were even closer to the President.
It seems impossible in the same breath to say both there is insufficient first hand witness evidence about the President’s conduct, and the President was warranted, let along acting constitutionally, in blocking the House’s impeachment inquiry committees from interviewing the relevant first hand witnesses or seeing their relevant documents. In a trial court, such conduct would result in a finding that the withheld evidence would be highly prejudicial to the party in question, and it would be so assumed by the court, the judge, and the jury, absent a genuine 5th Amendment self incrimination protection. You cannot have it both ways in an honest trial proceeding. We should look forward to seeing how the Senators and the President’s counsel handle this conundrum.
Democrats likewise have to face the discontinuity between their arguments (there is overwhelming evidence of the President’s guilt) and their insistence on new testimony and documents (they are also right). I assume that they believe that testimony and documents from Ambassador Bolton and Chief of Staff Mulvaney would put their case over the top with Republican Senator/jurors although I would seriously doubt that. Ambassador Bolton’s draft book according to this evening’s breaking news from the New York Times contains first hand witness testimony that President Trump was withholding aid to pressure Ukraine’s President to investigate the Bidens. And it appears the White House has had an advance copy of the book for at least a month while its lawyers continue to advance a narrative which they know to be false.
Prepared by: Lucien Wulsin
Dated: 1/26/20