No, the Senate is not a jury, and other misconceptions about impeachment

Byron Your Washington Examiner
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Timothy Snyder is a historian at Yale University. He has written books of varying critical reception on Russia and Eastern Europe. Lately, he has taken to warning Americans of what he sees as the danger the United States will fall into totalitarianism under President Trump. In the past few days, Snyder has turned his attention , not in a scholarly work but in a series of tweets, to a Trump impeachment trial in the Senate. His tweets were notable mostly because Snyder managed to pack a large number of misconceptions about impeachment into a very small space.

The tweets, ten in all, were directed toward Republican Sen. Mitch McConnell. McConnell has been majority leader since the GOP won control of the Senate in the 2014 election; he was most recently reelected (by acclamation among the Senate’s 53 GOP members) after the 2018 elections. It is perhaps too obvious to note that since the majority leader represents the majority, he exercises a lot of power and influence in the Senate. Nevertheless, Snyder began his critique with this:

Why does Senator McConnell talk about how he will run the impeachment trial, and why do we listen? He has zero constitutional authority to decide its shape.

What does that mean? Does Snyder mean that McConnell as a person — Mitch from Kentucky — has no constitutional authority to decide how the trial will be run? Perhaps, but the fact is, McConnell is the Senate majority leader, and the majority, not any individual senator himself or herself, but the majority, has substantial authority to shape the trial. That’s how the Senate runs. We listen to McConnell because what he says matters. Here are the next two tweets:

John Roberts is in charge of the impeachment trial. The Constitution clearly states that if the president is impeached, the chief justice presides.

Constitution: “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.”

It seems hard to write a clearer sentence than, “The Senate shall have the sole Power to try all Impeachments.” And yet there still seems to be some confusion on that score. If the Senate has the “sole power” to try the impeachment of Trump, how could Chief Justice John Roberts be “in charge” of the trial? It seems obvious, especially to anyone who watched the President Bill Clinton impeachment trial in 1999, that the chief justice’s role in the trial will actually be quite limited. Does anyone believe that on any matter of great import, on which a majority of the Senate disagrees with Roberts, that the majority will defer to the chief justice? That the majority will meekly do what the chief justice says because he is “in charge” of the trial? That is not going to happen. After the Clinton trial, Chief Justice William Rehnquist described his role this way: “I did nothing in particular, and I did it very well.” Next from Snyder:

The impeachment trial is a trial and the senators are all sworn jurors. No special role is foreseen in the Constitution for any specific senator.

Actually, the Constitution, which mentions juries in several places, does not say that the Senate will serve as a jury in an impeachment or that senators will be jurors.

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