As the second impeachment trial of Donald Trump continues, it is clear that the proceedings in the chamber of the United States Senate are a moment of enormous drama – but little suspense.
The 100 senators witnessing the trial of Mr. Trump have taken the grave oath that the 54 members of the Senate prepared in 1868 for the first presidential impeachment trial, vowing like their predecessors to “do impartial justice according to the Constitution and laws.”
The senators who considered the charges against Andrew Johnson just after the Civil War took that oath seriously; no one in the chamber knew how Edmund Ross of Kansas would vote, nor how Waitman Willey of West Virginia would come down, nor what William Pitt Fessenden of Maine would decide, on a vital matter that eventually was settled by a single vote.
This time – only the fourth presidential impeachment trial in American history – most if not all of the men and women who only days from now will vote on whether the 45th president broke his oath of office, themselves may have violated their own ancient “so-help-me-God” oath to “do impartial justice.”
The lawyers on both sides of this question are making their sombre orations with an eye to this moment in the American story – but with clear-eyed knowledge that though their presentations will comprise what Democratic Representative Madeleine Dean of Pennsylvania Wednesday called a “dialogue with history,” they may sway almost none of the jurors in the room in which they are uttered.
All but a handful of the senators sitting in solemn judgment on the floor of the chamber may have in fact made their judgments. All 50 Democrats almost certainly will vote to convict Mr. Trump. A handful of Republicans –perhaps as few as five, maybe seven – will join them. The rest likely may stand with Mr. Trump, though one vital mystery remains: Did the chilling video that the House managers presented jolt them from their predispositions?
That partisanship, of course, is one of the perils of asking members of the legislative branch of the government populated by politicians to make the sort of judgments that ordinarily occur in the judicial branch by magistrates. In our age of cynicism, and with 234 years of real-life experience, that does not seem astonishing.
But the American Founders who gathered in Philadelphia in 1787 set out to write the most idealistic political document of their time.
In their 18th-century deliberations – conducted in erudition and not in emotion – the delegate James Madison, later known as the Father of the Constitution, spoke of the senators of the future as “the impartial umpires & Guardians of justice and general Good,” according to the official notes from June 26, 1787.
The second Trump impeachment is being conducted in conditions – amid a pandemic and in the wake of an insurrection in legislative chambers – that Madison and his colleagues could not have imagined. But while the occupants of the Senate chamber may consider themselves guardians of justice, in large measure they are not impartial umpires – nor even particularly attentive to the arguments being made only yards from them.
This applies to Mr. Trump’s detractors – who believe that, as Democratic Representative Jamie Raskin of Maryland, the lead impeachment manager, put it Wednesday, Mr. Trump “surrendered his role as commander-in-chief and became the inciter-in-chief.” And it applies to the Trump supporters, who believe the impeachment and trial are simply an act of politics being conducted by other means.
The lawmakers’ positions were well-established before the trial even opened.
“We are talking about a president who stood in front of a mob and told them to go to the Capitol and invade, told them to go the Capitol and stop the lawful business of government so that he could try to stay in the White House,” Democratic Senator Elizabeth Warren of Massachusetts told CNN last month. “That is so wrong.”
For his part, Republican Senator Kevin Cramer of North Dakota, who according to the FiveThirtyEight website voted 94.1 per cent of the time with Mr. Trump, said, “Welcome to the stupidest week in the Senate.”
And yet it still remains possible that the arguments being made this week will shake some lawmakers from their preconceived positions. One who did Tuesday was Senator Bill Cassidy of Louisiana, who voted with Mr. Trump 89.1 per cent.
“One side is doing a great job and the other side is doing a terrible job,” he said. “As an impartial juror, I’m going to vote for the side that did the good job.”
In 1868, Senator Willey’s insistence on an open mind in the impeachment trial of Andrew Johnson sowed the ire of the Radical Republicans, the lawmakers most committed to thrusting Abraham Lincoln’s presidential successor from office. Throughout the trial, wrote the late Senator Robert Byrd of West Virginia, Mr. Willey’s position was “mysterious and ambiguous. Willey early infuriated many of his Radical colleagues, his Methodist brethren, and concerned unionist West Virginians alike by insisting that the trial should be a legal proceeding, not a political inquisition.”
Nearly nine decades after the Johnson trial, Senator John F. Kennedy in his Profiles in Courage revived the first impeachment from the mists of history, showing that Senator William Pitt Fessenden told a constituent who urged him to “hang Johnson up by the heels like a dead crow in a cornfield” that he had “sworn to do impartial justice.” Kennedy also shined a light on the agony of Edmund Ross and wrote of him, “Not a single person in the room knew how this young Kansan would vote,” explaining that “The hopes and fears, the hatred and bitterness of past decades, were centered upon this one man.” His vote sealed the president’s acquittal.
Just as he had on the first day of the impeachment, the Senate chaplain set the leitmotif of the proceedings. Before the trial began Wednesday, Barry Black spoke of the lawmakers’ duty “to know truth from falsehoods.”